'What course of action can she take to make sure her final days are spent peacefully in a dignified home, with the caregiving help she has been used to?'
Dear Quentin,
Several years ago, our father died and left a fully paid house to our mother because he knew she would be needing some financial support in her later years. Unfortunately, a few years ago our older brother tricked our mother into deeding the house to him.
Our mother is almost 100 years old, and she is living in an assisted-living residence and at risk of outliving her savings. The financial assistance that our father had planned for her is in our brother's hands.
What can she do to make sure her son provides the financial support that her husband had planned for her all along? What course of action can she take to make sure her final days are spent peacefully in a dignified home, with the caregiving help she has been used to?
Concerned Child
Dear Concerned,
This column is replete with letters of financial malfeasance involving elderly relatives. It's all too common. Vulnerable people are often targets for financial exploitation, and unfortunately their abusers are often someone they know and trust, such as a friend or even a close family member.
The Department of Justice defines financial or property exploitation as "illegal or improper use of an elderly or adult with a disability's money, property, or other resources for monetary or personal benefit, profit or gain."
"This includes, but is not limited to, theft, misappropriation, concealment, misuse or fraudulent deprivation of money or property belonging to the elderly or adult with a disability," the Justice Department adds. In this case, elderly is defined as anyone aged 60 years or older.
Statutes of limitations vary by state, so the earlier you take action the better. In California, for instance, the statute of limitations for elder financial abuse "is generally four years from when the plaintiff discovered or should have discovered the abuse," the Velasco Law Group says.
But if the financial abuse is "current and ongoing," there is no statute of limitations in California on elderly financial abuse. Of course, even if there were evidence of abuse, it could take years -- and your mother, at age 100, likely will not have time to pursue and win such a case.
Patricia Tobin, a certified elder law attorney based in San Rafael, Calif., and fellow of the National Academy of Elder Law Attorneys, recommends checking the elder-law section of your local county bar association for a referral and/or the National Academy of Elder Law Attorneys.
Assuming that your brother will not take out a home-equity credit line or use rental income from the house, Tobin said a lawsuit would likely be onerous. "Such an action may not be supported by the facts of the situation, and could be very hard to win, and create a long burdensome project, with only limited chance of success."
Generally, when someone transfers the deed of their home, it's a done deal. It's one of those irrevocable acts that can come back to haunt the former homeowner. (Exhibit A: "I quit-claimed my house to my most responsible son. Now he has blocked my calls.")
Roughly 35% of adults say there's a 50% chance or more of them outliving their savings, while the same percentage says it's more likely their savings will last; 18% say they don't know. Other surveys say more than half of people believe they'll outlive their retirement savings.
A quarter of 65-year-old Americans will have "severe need" for long-term care at home or in an assisted-living facility, this report released last year by the Center for Retirement Research found. That includes bathing and eating, and/or grocery shopping and cooking.
Even if the truth lay somewhere in between, the prospect of outliving retirement savings -- especially when there are assisted-living expenses to be paid -- is a challenge faced by millions of elderly Americans and their families who may struggle to help support them.
Given that the house is paid off free and clear, I suggest that you meet with your brother face to face, tell him that you wish to discuss your mother's care, and ask him to consider refinancing or providing funds in lieu of refinancing. No texts or emails.
If appealing to his best nature does not work -- assuming he has a "best nature" -- you could, as a last resort, use the manner in which your mother transferred the deed to him as leverage. Ultimately, however, you may have to rely on Medicaid to supplement your mother's needs.
"To be eligible for Medicaid, one cannot have assets greater than the limit," the American Council on Aging says. "Medicaid's look-back period is meant to prevent Medicaid applicants from giving away assets or selling them under fair market value to meet Medicaid's asset limit."
In 49 U.S. states and Washington, D.C., the look-back period is 60 months; in California, it's 30 months. If a Medicaid beneficiary inherits money "and gives all (or some) of the money away, they are in violation of the look back rule," the American Council on Aging adds.
I wish you the best of luck in taking care of your mother and finding a suitable path forward. There are no easy answers, especially when the one person in the family with the means to help the relative in question lives in a different moral universe.
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