How do you secure directives/wishes if one cannot afford an elder law attorney?
I am an only child so there will not be any siblings to rival with when mom passes; it will be much worse... mom's siblings. She has a sister and a brother and both live in different states. They have established me as the anti-Christ and have made their goals in life to make mine as difficult as possible. There is no grandiose estate nor amount of money that is involved regarding mom's assets; however, the way these two act, you would think there is a gazillion dollars at stake. My mother tells me she wants me to stay in the single family home she owns, to have her 2016 Honda Accord, and the contents of the house. Her brother and sister are guaranteed to do every and anything possible to prevent any of this from happening and create as much hell as possible for me when the time comes. Mom tells me she knows they will be jackasses toward me and she says she wants to secure her wishes are carried out and prevent me from any legal BS and disputes from her siblings. How does one ensure this type of situation when one can't afford an attorney to do the documents? Her brother and sister have "copies" of a "will of mom's " from years ago that exclude me from everything and that my mother claims she never constructed or said the things and directives in this outdated but only documented "will". Things need fixed ASAP but I do not know where to start or how to go about correcting and securing things. Thank you in advance for your replies.
PharSytid
20 Answers
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In AZ our attorney general website has DPOA, health POA, living wills and DNR forms. I just looked at your profile, go to AZAG website, they are legally binding documents, I used them for my dad and I met with attorneys that actually use them.
The biggest issue is that every will starts out with, I, pharSyTid, being of sound mind...can mom actually say that? This could be your biggest challenge, if she is then you can have her follow the format and say she wants to leave all her worldly possessions to you and list them as much as possible.
These documents are typically done by an attorney to cut off most the bs from family, they can still contest the will, no matter who drafted it. To avoid that completely you would need to set up a trust. A good attorney will not charge a fortune, we have been quoted 400.00 to 5,000.00 for the same services, shop around if you decide to do a trust and make sure to title everything in the name of the trust.
I am sorry that your aunt and uncle feel it is appropriate to attack you.
This outlines a lot of things that will be necessary. And I am pretty sure most states accept it as a legal document.
Your other option and might be the best of there is property and money that will have to be dealt with is to see an Elder Care Attorney. Yes it might cost a bit more but if you want everything done right that would be the way to go. Since it is Mom's estate the payment for the lawyer would come from her account you would not have to pay for it. If she is not competent it might be more difficult and you might have to obtain Guardianship of Mom. And as far as the order things go to after a death there is a "pecking order" and you would be first in that order.
Write down what Mom wants. Make sure it says that you are replacing any previous wills. Take this to the lawyer and he will draw up a will. While there, I would ask about POAs for medical and financial. It will make life easier as Mom fails. Don't think because your a daughter you have say in her care or finances. My Moms medical POA was like a living will saying what she wants and doesn't want. Since these POAs are assigning you, you keep them in a safe place that you have access too. There have been people who know there r POAs in place but can't find them in parents home.
A DNR order will need to be in place someday. You may want to talk to her PCP and have her sign one and have it put in her file and you have a copy. In NJ its now a form that is required by each facility Mom may be in to have on file.
When it comes from the states attorney general website it is as legal as it gets. Maybe you didn't know that but I have 1st hand experience with these forms and they are 100% legal, they even state statutes.
The whole question was because she can't afford an attorney.
A revocable trust means that you can change the trust, a non revocable trust is set in stone, you don't want to go that route. Revocable trust gives you more control over your wishes in the event things change, you can restate the trust to reflect your current wishes. You will also have what's called a pour over will, this just states that everything goes to the trust, this is a cover your butt document, in case something was missed and did not end up in the trust and for personal items that need to be dealt with, like household goods and such. It is literally a 2 paragraph document.
One of the benefits of a trust is that it is not public record, you don't have to provide anyone not named a copy. It will be dated and specifically state that it voids all prior documents, including any/all wills.
This would be the way to go if you could financially pull it off. The simpler the requirements the cheaper it is done. Also, if you do all the renaming of assets that saves money, you just send a certificate of trust, naming the assets to be placed in its name, ie Bank of America Account #123456789, renamed to: The Bittle family revocable trust, date 12/12/2018. This is how everything would be titled or deeded. Then it would list the trustees, you then sign everything F. Bittle Trustee. It is actually very simple but attorneys and others will make it seem like a big deal, that's how they charge 5k for a 400.00 job.
Let me encourage you to get the POAs asap for your mom, be sure and do a DURABLE GENERAL POA and a Health care POA, it is a box on top of the form that you check for Durable, this is the key word that no one tells you is the difference between being able to handle all her business or having to have specific POA from banks, real estate etc. I know from personal experience in Arizona and Nevada that you need a Durable POA. I have been able to take care of real estate sales and bank accounts because I had that document for my dad, I even think it is a fillable PDF on the website.
I hope this helps you understand a trust and I didn't just add confusion. We have just finished updating our documents and we had a good attorney do it. It did take multiple interviews to find one that was knowledgeable and reasonably priced.
You can PM me if you would like additional information.
But it would probably be best if you and your mom arranged that her possessions passed outside of a will. And for that you may need a lawyer. She can put everything in your name. She can make the bank accounts Payable on Death to you. Make you the beneficiary of her IRAs or 401ks or life insurance policies. Some states let you do a Transfer on Death with the car title, too.
The part you will need a lawyer for will be the house.
You can set everything up so that when your mom dies, her estate is empty. The will won't be distributing anything.
If I were you, I'd get a Certificate of Competency from her doctor before she does anything.
If she also wants you to be POA and pay her bills with her money, it is another form. I got one printed at the town library specifically for the state my aunt lives in. Her nurse and a neighbor witnessed her sign it. Some papers also need it to be notarized. So you sign in front of a Notary Public. My Town Office has one, free. Ask around for one near your Mom.
My aunt sold me her car for a dollar when she could no longer drive. She had it for me in her will, but after selling it, it was no longer an issue.
The house is a different matter.
In my state in their own writing on a piece of paper write what they want, sign it, date it. Having it notarized costs about $20.00.
You can have a doctors note stating mom is of sound mind keep a copy of that with the letter.
I spent $2800.00 on an elder lawyer... I put the money on my credit card (new credit card so the interest rate was the intro rate)... let me tell you it was the best money spent... my brother tried every which way he could to get me, he tried to get my siblings to go to court and I believe he will still continue to try. I did not do this for the property, the car or anything else (I have my own). I did it to protect my Daddy in case he needs future care that I cannot afford to give him physically. I will be able to sell his home and car to pay for assist living or in home nursing care.
You wrote: "I really really don't want to be POA for my mom, since we seldom agree on her medical or financial issues, but she wants it. If she has only SS, and not much of that, no car, no house, a little furniture (most of which is actually mine), and household stuff, I don't care about any of it, and my brother certainly won't (no contact for years now)."
You are confusing things here.
A will (or trust) is for specifying how one wants their worldly possessions to be distributed upon death. In your mom's case, there isn't anything to leave to anyone really. Note that despite having no possessions of any real value, you will still have to file a tax return for the year of her death. You will also have to contact SS to inform them of her passing (in order to LEGALLY manage her SS, you would need to apply to be representative payee - that can wait until necessary, but the point is NO kind of POA will legally allow you to manage her SS. Yes, being joint on her account will allow you to manage her assets, other will state this is so, and that there is no need to do this. I myself did this for a while, but in order to change the mailing address, I had no choice. That said, if you READ the SS web pages relating to representative payee, it CLEARLY states that they do not honor any POA - no federal entity does.)
POA, DPOA, Medical POA - you would want to have 2 of these 3 in place in the event that your mom is incapacitated. DPOA is the better option, but in all cases you would not have to take over/make decisions unless/until she was incapable of making decisions. These would allow you to have access to her medical and financial information AND make decisions for her WHEN SHE CANNOT. Without them, how will her bills get paid or serious medical decisions be made if she cannot? In a case like that, the state could step in and take ALL decisions out of your hands, including where you want mom to reside!
You should make a list of questions and find attorney(s) who offer a free consultation and ask about these items and why one would want to have them. Be sure to ask about what happens if you do not set these up before she becomes incompetent/incapable of authorizing them. Mom's assets, not yours, should be used to pay for these documents to be set up - if she has very limited funds, you may be able to find someone who will charge based on her ability to pay.
If she is capable now, these can be set up and just be in place for when they are needed. If/when she goes to the NH, YOU can then (help) make the decisions (make sure to find out if the NH accepts Medicaid.) It will be immensely helpful to have these in place so you can apply (or at least help) for Medicaid. If you don't have them, you will likely be left out of the loop and will not be allowed information needed. Again, it doesn't mean you step in immediately and start doing all the work, and financial or medical decision making! They are just there for when you DO need them.
First, since all this is happening because her siblings have a "will", ensure your mother has a current will and it's on file with her attorney or the original is somewhere safe. She can also get you a copy.
Second, for my Mom's house, I took her to her attorney and he made a simple "Transfer on Death" deed and she signed under his notary. That was taken to the city and recorded. When she passes, all it takes is a death certificate to the city/county and the deed transfers to you. Check with your city/county to find out what they have and what they require. This deed is official and takes precedence over a will.
Third, for the vehicle, there's the same mechanism. She would retitle the vehicle with you as a transfer on death. When she passes it only takes a death certificate to have the vehicle retitled to you.
The beauty of these two above actions is that the house and the car still belong to her. If something happens, she can change the TODs.
You didn't mention any financial accounts, but my sister and I were joint owners, so when Mom passed, we just took over the accounts.
Mom did not have to go through probate at all. There'd be nothing your Mom's siblings can do about it.
As always, you--she actually--can talk with an attorney to ensure it's all correctly done for your state and city/county.
I'm sorry you're going through all this. Good luck
In most states if you mother is single and you are the only child the intestacy would give you the property, even if your aunts and uncles think otherwise.
You may want to look into "transfer on death deed" in your state. Oklahoma law described here. https://youtu.be/wCV7OOwDuu0 Also, some states allow transfer on death for vehicles.
See an attorney.
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