Dear Len & Rosie, My mother is 85 and has Alzheimer’s disease. Her condition isn’t that good. She doesn’t recognize me. I could be any one of four people to her. A few years ago I prepared a power of attorney form and sent it to her. My daughter was supposed to help her get it signed and notarized, but she never got around to doing it. I have been paying my mother’s bills from her bank accounts, which are in both of our names. My problem is that I now need to sell her home to pay for her care, but I don’t know how to do it.
Dear Terry, You are in an unfortunate situation, a real failure of estate planning. If your mother had executed a durable general power of attorney when she retained the ability to make decisions, you would be able to sell her home. With a properly drafted power of attorney, you could create a trust to avoid probate or even an irrevocable trust to shelter the home from the cost of her medical care. It would have been a fairly easy paperwork drill.
Now you have a problem. You do not have the legal authority to act on your mother’s behalf. It was OK for you to pay her bills out of the joint tenancy bank accounts, because you legally have access to this money, but you can’t sell her home without going to court.
You will need to hire a lawyer in the county where your mother lives and file a petition asking the court to appoint you as the conservator of your mother’s person (for medical decisions) and her estate (her home and other assets). If you are the only child, and there’s no spouse, you have the highest priority to appointment. A conservatorship petition requires 30 days notice, but you can be appointed as temporary conservator on an emergency basis if there’s an immediate need to get things done.
Conservatorships tend to be much more expensive in relation to trusts and durable powers of attorney. On top of the court filing fee and probate investigator fee, you will have to hire a bookkeeper to prepare an accounting one year after your appointment as conservator, and every other year thereafter. This means you will have to keep meticulous records of everything you do on your mother’s behalf. You will also need to ask the court’s permission to sell your mother’s home.
It’s a lost opportunity for you, but if your mother had given you a power of attorney, and if she had created a trust to avoid probate, selling her home would have been a lot easier. You could replace her as trustee with one or two doctor letters instead of a court order, depending on the terms of the trust, and your lawyer could have prepared an Affidavit of Change of Trustee to transfer title of her home to you as trustee so you could sell it.
If you fail to plan, you plan to fail. Don’t blame your daughter for this. The young do not frequently face the prospect of a death in the family, so they think they have plenty of time to deal with things like this when in reality they do not. In your case, with a conservatorship, you will be able to get things done, but you’re on a much tougher road because you didn’t help your mother create a proper estate plan.
Len & Rosie
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at Tillem McNichol & Brown,
846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505