My mom was still under care of a 24hr / 7 days per week home health aide. When I informed her of the transaction she was not aware of what she had signed. What recourse do I have immediately and I don't have a lot of money for an attorney....please help !!!
I hope someone who is more knowledgeable will be along shortly. You might consider contacting your local District Attorney.
In real estate law, if there is conflicting instructions to the escrow company from differing parties, I do not believe the transaction can go through without a court order (sale, new mortgage, change of ownership). But that is different from guardianship, conservatorship laws. First, contact the County recorder and tax assessor's office. Take a copy of the tax bill with you.
I also believe that a Quick Claim Deed needs to be notarized, and if your Mom needs 24-hour care due to her condition, I am really surprised that the Notary would allow your Mother to sign. And in some States, one would also need Witnesses to the signing [the Notary cannot be a witness].
Does brother have P.O.A.??? Maybe he has no intention of filing it, and may have thought erroneously that death was emminent. How is your Mom today?
I would contact the District Attorney. Having your incompetent Mom sign the house to him is illegal and called "undue influence". Witnesses or no the DA may be able to get bro to destroy it. Another avenue would be to call Adult Protective Services. Before doing that I would obtain a letter from your mother's doctor stating her condition of dementia and that she is not able to make reasonable decisions. If either of these work, you may not need your own attorney, though your brother certainly would.
Estate planning, if that is what was happening, if your brother is P.O.A., this could be a valid process to put the home in a trust. But, if so, shouldn't your mom have had an attorney present? Were you present at the signing? Was a notary present? Who was the signatory witness?
If this was fraud, it is doubtful the quit claim deed could pass the validity test. There are legal elements to the document, google:
REVERSAL OF QUIT CLAIM DEED
Two hours ago, same issue. How will it be possible to assist you?
1. As Babalou writes, the deed is a Quit Claim Deed, by which someone quit claims (or releases) his or her interest in property someone else. A Warranty Deed actually conveys title to someone else. There's also a document known as a Deed C, but that's for a much different purpose.
2. I assume you've seen the Deed? Is it from your mother to your brother, or from your mother to your brother and your mother as well? I ask b/c of SendMe's query whether this is made pursuant to a Trust. If it were, the conveyance would be your mother's (Living or Irrevocable?) Trust, under date of (provide date of Trust).
3. However, if your mother has dementia as stated in your profile, and is not able to make legal decisions, as Glad stated, your brother's action renders the transfer illegal and constitutes undue influence. Under these circumstances, it wouldn't be a valid conveyance.
4. Your brother can record it; as long as certain nonlegal standards (such as specific format, inclusion of certain information such as who drafted the Deed [required in Michigan] it will be recorded. The decision whether it's valid or not isn't up to the Register of Deeds or other governmental department. Recording the QCD doesn't render it valid. It's just introduced into the chain of title.
5. The first question of validity might arise if your brother plans to get a loan against the property, such as a HELOC or reverse mortgage. That would be a big concern right now. Responsible banks would either review the title work for a mortgage commitment, or have their legal department do so. At that time, the issue might be raised what your mother's status if, but it also might not be, depending on the quality of bank review.
6. If your brother does get a mortgage based on an improperly executed Quit Claim Deed (and frankly I doubt if any of the big banks would accept only a QCD), the mortgage would have been obtained under false premises and could be invalid. The mortgagee would then have grounds to pursue misrepresentation and fraud charges against your brother. I believe the necessary element of intent in a fraud charge would be present since the brother obtained your mother's signature under medical circumstances which mitigate against her voluntary and informed consent.
7. If brother plans to sell the house, the title company issuing a commitment will catch the fact that the brother only has a QCD evidencing his interest. It may require that an amendatory Warranty Deed be required to close the sale, which would further perpetuate the undue influence aspect.
8. If there's an existing mortgage on the property, there technically would be an event of default because of the alleged conveyance of your mother's interest without prior notice and approval by the mortgagee (lender). It could "call" or accelerate payment on the loan, provoking a default.
What can you do?
9. Call or check online to see if the QCD has been recorded, but bear in mind that not all departments record immediately. It used to be weeks before deeds would be recorded if not taken immediately to the register of deeds' office in the county. Things are a lot different now with extensive computerization of records though.
10. If the QCD has been recorded, get a copy of it; also get copies of documentation from medical pros attesting to your mother's inability to make legal decisions, and head for the local PD. After reviewing the evidence, they may gather additional information. Then they'll refer the case to the local prosecuting attorneys office (or other governmental authority, depending on your area), for prosecution of criminal charges against your brother.
They may also contact your brother and direct him to correct the situation, but more than likely they wouldn't get involved in review of corrective documents.
Remedial action:
11. The QCD could create what's known as a "cloud on title", meaning the issue of legitimate title is not clear. How a false QCD is actually reversed is not something I know how to do, as I've never been involved in that kind of situation.
12. There is also an action known as "quiet title" in which the clouds on title are addressed and resolved via another document, perhaps a Deed of clarification or a reversal by your brother of the QCD false transfer. However, I've never been involved in any quiet title actions that involved fraud, so I don't have any insight into how this could be handled if not by litigation, which really isn't possible if the bad brother is the one who holds proxy under a DPOA.
This is something I believe needs to be answered by an attorney.
Saving money on legal counsel:
13. If your state has an elder division (as Michigan does), call to get advice on how to rescind your brother's action and correct the title. If there is no agency, try to find a community or senior center which has lawyers come for free legal advice on weekly or biweekly bases, and get some idea of what's necessary.
14. However, if you don't have any authority under a DPOA, you aren't going to be able to record anything to reverse the QCD action. Your brother would have to be stripped of the authority, and possibly court action to appoint someone else as your mother presumably wouldn't be able to do that if she has dementia.
Robert wrote today:
"Thank you , I am new to this forum and am sorry for the duplicate question. The facts are that my Mom has not been found incompetent, yet has been diagnosed with beginning stage of dementia. She was is in a rehab for 3 months after a slip and fall accident which exacerbated the mental issue ( forgetfulness and confusion ). When released she had a 24/7 home health aide for 2 months; it was during that time she was told to sign the Quit Claim Deed. Then she was brought to a notary. Two months later I went to town records to check her deed, as advised by an estate planner, it was then I was presented with the recorded Legal Zoom documents. This is scary stuff.. Imagine anyone can order Legal Zoom Docs and manipulate a person to sign over the rights to their home. I believe their should be more regulation on this. Now I have to have this reversed; I caution all the good folks out there its very easy to order these documents. "
The issue of downloading documents and signing them is a serious one, not only for situations like your mother's but also because it doesn't provide people with answers by real attorneys to specific situations.
Although I haven't checked the Legal Zoom website, I can bet that the terms and conditions of use absolve them of any responsibility, and more than likely require anyone who might use the legal forms inappropriately or be challenged with legal action to in turn indemnify and hold Legal Zoom harmless. That's how they can get away with providing forms to people who might not have any real idea what they're doing.
Back to your mother's situation: ask the home health aide if she took your mother to a notary and if she was present when the QCD was executed or if your mother signed it without a notary being present.
You may also have to order a copy of your mother's record during the rehab as the notes would document confusion and attest to the fact that she was experiencing some mental confusion and wasn't in a position to execute legal documents.
The home health aide's notes might reflect the same observation.
I really do think that at this point you're going to have to involve law enforcement and an attorney to straighten this out. You may also have to get a PPO to keep your brother away from your mother. Or is this the brother who has the POA?
As one who has been involved in property done via QCD & Quiet Title Action, I'd like to add my experience. As Garden said, there can be all sorts of problems with a QCD. There are times when a QCD works well, like when a couple is divorcing and they own a home or property or land which 1 is keeping so the other QCD's this item to the other completely via the QCD. QCD is usually indicated within the divorce decree.
But for QCD done when it's an attempt to get ownership of a property without going through the guarantee & validation of title, interest & ownership via a warranty deed, well that is fraught with all sorts of problems. A QCD does NOT guarantee ownership; it is transferring ownership of what an individual thinks they own. So if they do not fully 100% own the house, the QCD is moot. If there is a mortgage, any liens or claims on the home (like if mom is on Medicaid); or if the property was inherited via a QCD, there will be problems with getting clean title. There will be "clouds". As Garden wrote, this can be quite common.
I did outreach after Hurricane Katrina and one issue that came up over & over was that folks were living in inherited via QCD property. They never did probate back when Auntie died in the 1940's and property passed down generationally. As it was via QCD, there was no guarantee of ownership.
All possible heirs would need to sign off in order for the family living in the home to ever get clear paperwork to be able to get an SBA, Road-Home, MS-MDA or other funding as it had to be the legal owner with full guarantee of ownership. Then add in the worthless nephew who has judgements or liens outstanding which can be attached to the property, which cloud the title and have to be either paid off for a clear title to happen. Its one of the reasons why today - a decade later - there are so many properties in New Orleans, the lower parishes and the MS coast counties that have not been rebuilt. The underwriters for mortgage companies or banks just won't do the paper on QCD property. Its more of an impossible lending situation than dealing with property held in a trust, which is difficult enough.
I mention this Katrina tidbit also because if you are a heir as per a valid will and the property was transferred via a QCD, then you as a heir can contest the validity of a sale of the QCD property. What happened post Katrina was that "owner" needed to get the whole group of other possible heirs to sign off on their % of ownership to sell the property. You refuse to do so unless you get your share. The $ usually has to go into an escrow accounts divided by # of heirs.
About "QUIET", well these creatures take time and have to be done just right by a real estate attorney very familiar with the courthouse & your states laws. With a quiet title action, the property could have been sold via a QCD or more commonly was bought at tax sale (once its available for redemption & you qualify to redeem). So in order to own the property fully you do a Bill of Complaint to Confirm Title (a quieting of any others who could voice ownership). You do a quiet to essentially silence any contesting of ownership by legal notices both in the paper and by contacting the known heir or lein holders. It's a series of actions (like a Summons of Publication) which take a few months to finalize. If you are a heir of the old owner on the property, then you file a response to the Summons as such and then work out an agreement as to ownership and payment due in order to get the property back. For those who hold the paper via a tax sale, they can add on all costs on the property from day 1 of the first tax sale year or since redemption so it will NOT just be taxes & interest that would be the amount under negotiation.
I'm wondering if perhaps Brother is the do-it-on-quick-cheap side type of DPOA and is doing the QCD not because of any intention of leaving his siblings out but doing it to have what he views as a cheap & easy way to get rid of mom's assets to make her eligible for Medicaid??? If so, buy doing the QCD mom would need to totally be private pay for any services that her Medicare or LTC insurance doesn't pay for till Nov., 2020. 5 years = 2020. Does your bother understand what Medicare pays for and more importantly does NOT pay for? If mom applies for any Medicaid program before 11/2020, there will be a transfer penalty on the full tax assessor value of the house placed on mom's application. If there is a transfer penalty placed, Brother should have to private pay for all the costs of care totally on his own as the asset became his & his alone fully imho. Remember this if he comes to you all like 3 years from now wanting you all to chip in for mom's NH or AL.
December, 2020…that is a very very long period of time…….
- is he ill-informed and thinks by getting rid of mom's assets ASAP as he did by the QCD, he is going to be able to get mom onto Medicaid & hold onto mom's assets. He is doing whatever in a panic after mom's fall. (He is also somewhat cheap.)
OR
- he is a me-myself&I type and is doing whatever he can for himself first and foremost to enrich himself of mom's assets via his DPOA powers. And if mom needs AL or NH in the near future, he thinks that mom has enough $$$ to private pay for it & expects that his nicer siblings will be happy to pay for mom's care?
Your answer imho makes big difference in how to approach what he did.
FYI transfer penalty is roughly based on a formula using the tax assessor value of home & daily room & board reimbursement rate paid by Medicaid for a NH. Like for TX, it's about $ 155.00 a day that the state Medicaid pays a NH. So a 100K home would have a transfer penalty of 645 days. Transfer penalty now starts Day 1 of mom's NH stay or date of application and not the date of the QCD. 645 days that someone will have to private pay the NH. Only if mom gets to December, 2020 before applying for Medicaid will there be NO penalty.