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Monday, February 4, 2013

Mom's in a nursing home; can we sell her house and divide the money?

Do you believe that other people should be allowed to take your money away from you - and I'm talking hundreds of thousands of dollars - because you are old and they think you don't need it? Of course not! So why do so many people think they can help themselves to their parents' estates without permission before the parents even pass away?

Here is a note I recently received from a reader:

"My mother has just been panelled to a Nursing Home. We are 5 children and one is her POA, and executor. Her will says that the house is to be sold and divided between the 5 children. Is it not best to sell the house right away and divide the money between the children, rather than keep it in a seperate account till she passes?"

Would it be best to sell the house and divide the money right away? Best for whom? And why are you following the will of someone who isn't dead?

This is a subject that I've been asked about many times over the years, and I have to confess that it irritates me no end. Your mother's will says that the five of you are to inherit the proceeds of the sale of the house after she passes away.  That's what wills do; they talk about what happens to an estate after a person dies. She hasn't passed away. Therefore, no, you can't have the money.

The executor has zero power to do anything at all while your mother is alive. The will has no effect while your mother is alive. So nobody gets to act as her executor yet. Forget the executor and the will while your mother is still alive. I hope I've made this point clearly enough, not just for you but for all of the other readers who ask me this question repeatedly.

Now let's look at the attorney acting under the Power of Attorney (POA). Has the POA been brought into effect? Don't assume that because your mother is going to a nursing home that the POA is automatically in effect. Going into a home likely has no effect on it at all. The person named in the document should read it carefully to see what has to happen to spring it into effect. In many provinces that means having a doctor sign a declaration of incapacity.

Once the attorney under the POA has properly sprung the document into effect, the attorney has to do what is in the best interest of your mother. Maybe this means selling the house. If your mother is never going to be able to live there again, then perhaps that's the best thing to do financially. However - and this point is NOT to be overlooked - the sale proceeds of the house must be invested for your mother. The attorney under the POA does not have the legal right to distribute the funds to you five. He or she risks financial penalties, removal from the job of POA and perhaps even jail time for that, depending on the circumstances.

Rarely do posts move me to use quite as much underlining as I've used in this one, but this topic is so important. Over and over again, I see children with an over-inflated sense of entitlement taking money that doesn't belong to them on the philosophy that "one day it will be theirs". That day hasn't arrived yet.





69 comments:

  1. Very good post. I'd be interested to know how often people in the women's situation (that is, the mother) choose to divide up at least some of their assets before death so that the kids can benefit and mum can see how she's been able to help the kids while she's still alive.

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    1. Dividing up assets while you're still alive is an option, but not one that everyone can afford. The trick is making sure that you've kept enough of your assets to pay for your future care and a comfortable, secure lifestyle. In an awful lot of cases, a parent dies leaving little more than the home, contents and a small bank account.

      Lynne

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  2. Love your articles and they sure have been a great help in the estate case that I am involved in. One of them helped get a ruling. Thank you for the terrific information.

    I have a related question on home sales of this sort. A parent or relative is placed in a home and her executors (also two of 3 residual beneficiaries) are named POT for the sale of her family home. There was no mention to the remaining beneficiaries about the proceeds from the sale of the home until the estate had been contested and during discoveries executor stated that the elderly woman of declining health "gifted" the executor the money from the sale. There were no witnesses and very uncharacteristic of the elderly lady to do such a thing. Can an executor accept money like that without disclosing it to the other beneficiaries.

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    1. Interesting that it "helped get a ruling". Glad to hear it! Would love to know what specific issues or posts were involved.

      On to your question: The executorship is irrelevant to the receipt of the money, as the parent was alive at the time and therefore there was no executor.

      It's really common that a child of an elderly person claims that money was given to him or her. Sometimes it is; sometimes it's not. Yes, the POA can receive a gift without notifying anyone. You are not beneficiaries while the parent is alive. However, it's a complicated area of law, as a POA is not allowed to benefit from his or her position as POA. This is why gifting is claimed.

      Usually this kind of transaction is discovered, as you say, after the parent has died. The POA has a duty to report all transactions, including gifts, to the executor. Doesn't help much when it's all the same person.

      There may be a way to deal with all of this that's cleaner and clearer than getting bogged down in POA and executor's duties. Is the person who received the funds a child of the deceased? If so, he or she must have their inheritance decreased by the amount of the gits. This is the "presumption of advancement" and applies to all kids of the deceased, whether or not they are POAs or executors.

      Lynne

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  3. Lynne, I stumbled about the obligation for French (France) children to help in paying the costs of a nursing home in the case the parents' income and state's subsidies are not enough. Is this the same thing in Canada by law?

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  4. My brother, myself and my sister are POAs of Property for my mother, who is in a nursing home. She has not been deemed incapacitated although she has some dementia.
    My brother is also on the deed for her house to save on probate taxes. He wants the house to be put up for sale and the contents sold or distributed to family while our mother is in long-term care - since she will never be returning to the house.
    It is my understanding that Mother considers the house as part of her estate. But her Will, which has the estate being divided up equally among 7 children, does not list specifically her house. Should mother see her lawyer to correct this omission before the son pushes through this sale?

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    1. People like your brother irritate the heck out of me. Where on earth does he get the notion that he can sell another person's home just because he wants to? Sure, he is on the POA but you have said it is not in effect. Nobody can use that POA until it is properly brought into effect. I'm guessing by the wording of your question that the POA doesn't come into effect without a declaration of incapacity.

      Supposing that in the future that declaration of incapacity is made, it might be a good financial decision to sell the home. However, if you or your brother or anyone else takes the proceeds of the sale, they are stealing. The proceeds of the sale of the home MUST be invested in your mother's name.

      Having your mother change her will is probably not going to help matters. You and your sister need to refuse too distribute the proceeds of the sale, and explain the law to your greedy brother.

      Lynne

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    2. Anyone who makes comments like you should be not allowed to practice poa why is everything stealing ? My mother is still alive and I need medical care you think my mom wouldn't help me even if she wasn't in a home ? You should just keep you're mouth shut telling people what is right and not what or who has the power

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    3. Hi Frank. If you don't like my comments, don't read my blog. Bye bye.

      Lynne

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  5. Lynne, how could the brother be stealing from a legal perspective when anonymous has already stated that the brother is on the deed of the property? It is my understanding that he is legally part owner of the property and that cannot be disputed unless the brother signs a quit claim deed to volunteer in removing his name off the deed; which of course is unlikely. After the sale of the property, mother and brother would have to split the proceeds 50/50.

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    1. The brother is on the title but he does not have beneficial ownership of the home. If the home was sold, he would not get 50% because he was on title solely to save on probate costs, and not because the mother wanted him to inherit the property. The court would find that this was not a true joint ownership, and that the brother was a trustee of half of the property on behalf of the mother. This has been the law in Canada since 2007. People who put their kids on their titles like this are just asking for legal problems, and usually they get them.

      Lynne

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    2. Hello Lynne, I have some questions regarding similar situation within our family. Could I email you privately? I don't want to post this with my name..thanks

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    3. Yes, you can email me at estatelawcanada@gmail.com.

      Lynne

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    4. Hi, I just stumbled across this page and it is so full of awesome information! Would you mind if I emailed you with some questions? We recently had to put my father in LTC with both Vascular Dementia and Alzheimer's, and I am acting POA. I have some questions on how I go about selling his house and vehicles.

      Delete
    5. Hi jellibeanlane,
      I suggest that you call my office at 709-221-5511 and schedule a consultation with me. That will give us an hour to discuss your situation and come up with some ideas. A consult is billed at $400 +HST.

      Sometimes I do invite people to email questions to me, but honestly that works best when they are very short, to-the-point questions. It's not really ideal for talking things over.

      Lynne

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  6. Thanks Ms Butler..I will email tonight.

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  7. Great article! So glad I found it.

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  8. Our dad is in a long term care facility since early this year. He has early onset dementia although he can converse very well at times. His mobility is the real issue..he is a high fall risk therefore he cannot be in his home. He requested his house be sold and it was and he also requested the proceeds be given to his children who are also POAs. He has enough savings and the children look after his investments to make sure they continue on he also receives sizeable pensions. Can this be done? Thank you.

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    1. In my opinion, no.

      The first issue is whether your father has the mental capacity to give away his money. You said he has dementia, which is an indicator of lack of capacity to deal with financial matters, though not always.

      The second issue is that of Power of Attorney. You also mention that the children "are POAs". You don't actually say that they are acting under the POA, but I think that's what you mean.

      If your father has someone making decisions for him, then I think we can agree that he doesn't have mental capacity to make his own financial decisions. So we know he can't give the instructions you mentioned to share out the money. That leads us to what the children can do using the POA.

      They can sell the house and they can invest the money in your father's name. They cannot share the money among the kids, as POAs cannot give away funds to people who are not dependents. Secondly, POAs cannot benefit themselves (or their spouses, kids) using the funds they are looking after.

      A lot of people in your situation just can't see the harm in it, so they go ahead anyway. Just keep in mind that it only takes one person to get his/her nose (or his/her spouse's nose) out of joint and raise a fuss, and all of a sudden there's legal trouble.

      Lynne

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    2. Thank you. His children, they are grown, adults, grandparents themselves, are the POAs. It was their dad's wish to sell the house and gift them the proceeds. He has a sizable sum in the bank and receives a sizeable pensions. He is well looked after financially even without the proceeds of the home and his children take care of him also. They visit every day or every 2 days.His children also have no argument or disagreement with each other, they get along. Also, in his will it is indicated to split evenly, but he wants them to have this now due to his situation.

      Delete
  9. Great website btw!
    Here's my question. On a home owned by a surviving parent (suffering from Dementia), can one of 3 children (who was been named POA) take it upon himself to move in rent-free to avail himself of his own debts and financial obligations? Presume that the other two siblings object to this. All three are named as equal beneficiaries when the homeowner passes away.

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  10. tony at 705-607-1277October 13, 2015 at 10:31 AM

    what do i do when i told my sister poa that she is illegally preventing me her brother from seeing my mom, she will not even tell me where my mom is staying and the name, i have no charges or restrictions against me.i went to my moms doctor and he would not tell me either, they said that it was patient privacy, but i truly know that my mom wants to see me and talk to me, she has no phone and my sister took away my moms phone book.she is over abusing her poa rights. help

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    1. Tony, I'm really sorry to hear about this very distressing situation. I'm not surprised that the doctor's office won't help you, as they do have to protect patient privacy. You will have to focus on the law now.

      Here are some of the things you might want to consider doing:

      Find out whether your sister actually has the legal authority to do what she is doing. Is the POA one of property only, or does it also cover personal and health care decisions? These documents can really vary between provinces and even within a province. You need to be armed with the facts.

      Mediation with your sister might be useful to come to an agreement about your seeing your Mom. At least you would find out what the problem seems to be and why she is doing this. It could well be nothing to do with your Mom and your sister is mad at you for something else, but you'll never know if you can't get her talking.

      If all else fails, hire a lawyer to challenge her on her abuse of the POA. That's the hardest and most expensive option, so perhaps save that for the last resort.

      Lynne

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  11. My mother is 94 and is suffering with advance dementia and we need to move her to a nursing home. That means her house must be sold. The problem is my brother. We both have joint POA for both medical and financial affairs.
    I knew my mother had been lending him money from an inheritance she received when she was 87 but until I found her records I had no idea that he had completely drained her bank account. He 'borrowed" $19,000.00 between 2007-2009 and still owes $8,700.00. However the loan agreement that her lawyer drew up for repayment in 2009 was destroyed by brother when our lawyer retired and my brother got hold of her will and the loan agreement.
    He lied about bringing the will to her new lawyer and it was only after the bank lost the POA in 2015 and I asked the new law firm for a copy, that I found out the will was missing. After a month of lies and hemming and hawing, I reported the theft to the police and the next day the will magically reappeared in a place I had searched several times. However, the loan agreement never resurfaced and I only found out the extent of the amount of the loans when I recently got access to her bank records.
    Now he is demanding that he get a Gift Deed of $20,000 when the house sells. I told him the money had to be put aside for our mother's care and no one could touch anything until she dies, but he is insisting this is completely legal. I am so sick of his greed and entitlement. Thank God it is a joint POA but can he get this $20,000 if I refuse to sign it over. Personally I don't think he should be POA as he doesn't have my mother's best interests at heart.

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  12. Our 86 year old mother is a widow & suffering with moderate Dementia. I found evidence of statements that proved that my sister as POA was using our mothers credit card for her daughters personal purchases. Plus my sister had withdrawn over $40,000.00 of unexplained purchases without having receipts from our mothers account. I attempted to handle this as a family matter but she wanted nothing to do with it. I was told to mind my own business. My brother also told me to do the same. My sister stopped talking to me & retained a lawyer to act as a mediator. So now any questions I have concerning our mothers affairs have to be sent via email through the lawyer to my sister. It has been 3 months now since my discovery. Finally my sister agreed there was an excess amount spent in 2015, so she decided to pay back $20,000.00, after the house sells & she receives her share of the proceeds of the home. I believe she should have paid back more, but that was her own decision. My sister is now looking into putting our mother into a Retirement Home while she is waiting for a placement in LTC. I agree our mother needs a team to care for her. So now the home which my sister has 1/3 ownership of with her own mortgage is going to be put up for sale, but not right away. My sister wants to live there for up to a year, even after our mother goes into a Retirement Home within the next month. My sister has lived in that home for 16+years with only having to pay for the taxes, while my parents paid for the utilities, etc. My sister claims everything was fair in her eyes. How do I propose that she sells the house ASAP & she has to pay her mortgage debt & move out. My sister feels entitled to being able to stay there as she feels she needs time to consider her options. Plus she is expecting that the financial expenses of utilities, repairs should still be my mothers responsibility even if she is not living there. Our mother does have an investment & receives a good amount of pension, which would pay for her Retirement Living for 5 years & than after that would have to use the proceeds from the sale of the home. I cannot afford a lawyer & I feel like I am being told what is going happen, without my sister giving any consideration of my opinion. I feel like my hands are tied...what do I do to help to protect my mothers assets.

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  13. I was researching online and came across a Financial Post article at http://business.financialpost.com/personal-finance/retirement/inheritance/giving-your-inheritance-now-has-benefits which reads...

    Contrary to popular belief, since we have no gift tax in Canada, you can give your kids (or for that matter, anyone) as big a gift as you want during your lifetime and the gift will be completely tax-free. Now, if you are giving them property that has gone up in value, like the family cottage or appreciated stocks, you will be deemed to have disposed of the property for fair market value and you may be liable for tax on capital gains at the time of gifting. But if you give cash or other property that hasn’t gone up in value, the act of gifting itself is tax-free.

    When the kids receive that gift, they could use the funds to pay off their mortgage, thus reducing the amount of non-deductible interest they are paying each year to a third-party outside lender. Parents who are nervous about doing this because they may not want to benefit the child’s spouse should the marriage break down will often take back a registered mortgage on their child’s home, charge no interest and perhaps forgive the mortgage down the road.

    This seems contrary to what I have been reading on your site. Can you please clarify. Thanks so much.

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  14. My Dad died in 2014. My Mother has decided to go to a retirement home. She requests the house be sold that's in her name and funds be used for her to live there. Is this alright? I was told the funds had to be turned over to Medicaid or the retirement home and could not be put in her account and used for the stay there since it was over $1600.00

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  15. My mother-in-law after her husband died, added her youngest son to her expense bank account as joint and several. Her savings account was put into his name only. The accounts were her's, he did not contribute to the balance. When my brother-in-law's 1st wife threatened to take the savings account as part of their divorce, my husband was added to the savings account with his brother, either to sign. Mom's expense account is joint, her and the youngest and her savings is in her two son's names. My mother-in-law always referred to this savings account as her funeral account.
    Last year, when my husband started talking to mom about going into a senior residence, he thought it odd she kept going on about the cost. He talked to her about selling her house and using some of the funds to cover her monthly shortfall, she would reply, she had to talk to her other son. My husband after becoming suspicious, ask to see her property tax bill. He discovered that his mom had signed the deed to her house, to his younger brother and his brother's second wife. His mom had no ownership and no back up plan should his brother die before the mom. When he asked her why, she claimed she knew she was a strain on the youngest son's marriage and basically this was a way to help.
    Last year, my mother-in-law did go into a residence and within two weeks, the youngest son and his 2nd wife had the house cleared out and on the market. He sold it under market value, we assume to avoid capital gains.
    The youngest son and his wife took all the proceeds from the sale and gave mom nothing.
    The only money she had left was her funeral account in the name of her sons. Money was transferred from this savings account during the year to mom's chequing account to cover her expenses. Recently when my mother in law's health declined, my husband looked at the joint account he held with his brother (mom's money)and came across a transfer of half the balance. When he questioned the bank, about the receiving account, he was told it was not an account with his mother's name on it. They suggested he talk to his brother. The money was gone for two weeks and then replaced. It was transferred to a personal account not in my mother in laws name. My husband is concerned, that if he asks about the transfer the money would again disappear for good.
    We are at our wits end, since this account is the only funds left to support mom's monthy expenses and pay for her funeral when the time comes, she has no life insurance or other investments.
    I feel my brother-in-law can not be trusted with his mom's money. I feel he manipulated my mother-in-law to sign over the deed, elder abuse comes to mind, as mom felt signing the house over would help his marriage. In other words someone made her feel his marriage (s) failures were her fault.
    My mother in law, speaks little to no English, so we are not sure how a lawyer would have or could have agreed to this deed transfer, when the person benefiting from the transaction was the person translating.

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  16. Mother is in a home, my sister has POA.
    She wants to sell and I want to rent.My mother's been in the home for two years. We just now have started to clear out the house. After clear the home all of my mother's jewelry is gone. My sister never mention it once. I asked several time and she said I don't know.Her family were the only ones who had a key
    And alarm. I know she has taken it. She doesn't what to talk about the jewelry and sentmental it's that belong to my parents that are also gone.Not once did
    She question the aware about of what's missing. I have proof the my sister and her daughter have taken from my mother before taking advantage of her dementia.
    What can I do. I am so mentally and eemotionally drained.

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    1. If all of this is happening because she wants to sell and you want to rent, then I'm afraid you are going to be unhappy. If your sister is acting under a valid POA, she has the right to make the decision to sell the home. It would be nice if people would actually listen to each other and reach an agreement, but it sounds as if that isn't happening here. If it comes right down to who has the right to do what, she is the one in control.

      If you have proof of a theft, I suggest that you share it with the police.

      If you believe that your sister is taking advantage of your mother, you can object to her actions, ask for an accounting of her transactions, and possibly get her removed from her job as POA. But it takes time, money, and a lawyer to take it to court.

      A lawsuit won't help you feel any less mentally and emotionally drained, unfortunately. If you feel this is the only way to put a stop to what's happening, go ahead and start the lawsuit, but please consider mediation early on in the process. This might avoid a trial, a huge loss of money, and the end of your relationship with your sister.

      Lynne

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  17. My father died in 2007, my grandpa died in 2009. Left Survivors are my Aunt and Grandmother. My Grandmother had dementia as was stated to me in 2009 via email by my Aunt shortly after my grandpa passed away. I told my aunt that since my Dad, her brother, passed away that whatever my Dad was set to inherit from my Grandmother would by law pass to me his daughter. My aunt replied to this that shortly after my grandpa died, her mother(my grandmother) asked to be taken to the lawyer and wanted to give her property and all her assets to my aunt because no one else cared about her. This occured after my aunt had already told me she had dementia and cannot remember anything let alone even answer a phone.
    My aunt then.promptly put my grandmother in a nursing home, sold the house for all profit as there was no mortgage since 1969, and took title/ownership of everything accounts etc
    This was 2009. It is now 2017. My grandmother is still alive and in a nursing home in White Rock BC. My Aunt took the money and bought hundreds of acres in Northern Edmonton and has a hobby farm/ wannabe bed and breakfast and retired early.
    The sad thing is I let this all happen because I didn't want to spend money on legal fees or be that person. When my aunt is the one that deserves to be in jail for stealing and lying.
    I should l inherit in my Dad's place by BC law, she knew this and thought she was entitled and talked my grandmother into signing everything into her name.
    What an awful excuse for a human being. She has left my grandmother in a nursing home with no family around since 2010... 7 years.
    Really just need a date from a doctor as to when she was first diagnosed with Dementia because signing over off all her assets after diagnosis is a crime.
    What an awful excuse for a human being my aunt is. Karma will get her. Nice to know that I technically own half of that property she purchased up in Northern Edmonton.

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    1. I'd have to argue with you on the "signing over assets after diagnosis is a crime" part. If only it were that simple. The police rarely get involved in this kind of thing because it's not black and white - the existence of POA documents makes it unclear whether the person is acting lawfully until it's decided by a judge.

      Yep, your aunt sounds like a piece of work. Unfortunately there are an awful lot of people just like her, taking advantage of seniors who trust them.

      Lynne

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  18. Quick question
    Lady "X" (for this purpose no names and we'll call her that) has changed her will to add persons "A & B" to receive her house in her passing and changed her POA from one sister to another "Y" then 2 months later X is deemed incapable and has dementia so A and B live with her and care for her and arrange foe everything to be safe for her to be home still like X wanted. X breaks her hip is on hospital for 4 weeks and then is told she can go home by doctor but POA Y doesn't want her to for saftey reasons and puts her in a retirement home waiting for a bed at long term care. So my question is since A and B still live at the house and it is being willed to them is the POA (POA for care and property) able to sell the house before A passes away to gain profit and be sure A and B don't get it in the end?

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  19. Hi Lynne, wondering if you could guide us.
    I live in Ontario, my husband and his brother hold joint PAs for their 95 year old mother. His brother is joint with his mom on her bank accounts and bank refuses to add the continuing PA without mom being there. In spring 2015, mom was moved to a retirement home. At that time we found out,my brother in law had mom (in 2005) transfer ownership of her house to him (no cost). Within days of mom going into a retirement home, brother in law and his wife cleaned out her house and sold it, mom received no funds. Her retirement home was costly and used the majority of her money.
    In 2016, my husband had to move his mom to a nursing home, as her dementia had progressed. At that time his brother was on vacation in Europe. My husband discovered $15000 had been transferred from his mom to his brother's own account. The brother pretty much does or attempts to do things without the joint PA and then when a signature is needed, he offers no explanation or proof. Recently an accounting firm who did mom's 2015 income tax ask my husband to sign a T1 adjustment, transferring mom's medical benefits and disability amount to his brother. My husband asked to see the full return but was ignored, so he did not sign. Later his brother left a voice mail stating mom owed $1200 to CRA and if he did not sign he would take the money from his mom's account to pay. My husband called CRA and was told, she did not owe any money. Finally, the accountant sent the 2015 tax return to him. She owed no money, but we did notice, her rent to the retirement home etc, was never claimed as a credit. We can only assume at this point that his brother has claimed he is her caregiver in order to decrease what he owes from the sale of the house he had signed over to him. (he did not live there). What can we do to prevent this man, from taking advantage of his mom and his sibling.
    It is really starting to look like he thinks his mom, is his cash flow.

    Mal

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  20. I am writing this in 2017 and wanted to know if all the information in the article and replies still is the same as I was told that with the POA I have I can sell the house and distribute the assets. I assume from everything I have read here that this is not the case but wanted to be sure nothing has changed since the writing of this in 2013. Thank you in advance for clarifying this for me.

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  21. My mother and father both have Declarations of Incapacity which executes the POA for me. Canada Trust says that if either one of them goes into a branch, they can still remove any and all funds. I am worried someone else in the family may try to get access to all their money. How can I secure these funds so Grandma does not buy the cute grand daughters a car or some other such nonsense when they exert undue influence or manipulation?

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    1. Close the account and open one that requires your signature. Note that you cannot put the funds in your personal name, but you can open one that says "X, power of attorney for Y". I am not suggesting that you cut your parents off from any funds at all - it is their money after all - but sometimes there are risks that need to be addressed. If they enjoy and can manage using a debit card, for example, instead of closing their account entirely, leave funds in there that they can use for their own purposes and just put away the savings.

      It's a balancing act between protecting them and being heavy-handed. I really hate seeing seniors cut off from their own money, but I also hate seeing that grandchild drive away with Grandma's entire life savings.

      Lynne

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  23. Hi Lynne,
    My father has late stage dementia and after caring for him for 4 years he has now been in a care facility for only a few months.
    I just found his will that is unsigned.
    I am the POA. What should i do?

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    1. There's not much you can do. You certainly cannot sign it for him. If it was prepared by a lawyer, contact that lawyer's office to see whether one was signed at the office, because the one you have might be a draft or a copy. Check the bank safe deposit box, if there is one, to see if there is one there. If he passes away and you have not found another will, you are not going to be able to probate the one you have.

      Lynne

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  24. hi Lynn, my grandmother was just placed in a nursing home the end of last year.Before this My grandfather was placed in a nursing home and resided there for 6 years. During that time the facility that my grandfather was at drained their savings and my grandmother was force to put there home on a lien in order for my grandfather to be placed on state aid. After my grandfather passed my grandmother resided in their home for 8 years. Now that my grandmother is in a nursing home permanently, my mother shortly decided to move in with her new husband and son. My mother stayed there for about 6 months. Now she has moved out of my grandmothers home and has taken all of my grandparents possessions. She is now in the process if she has not done so yet, selling all of their possessions and keeping the profit for herself instead of having it go to my grandmother who is still alive, but lives with dementia. My mother Claims that she has obtained permission from my grandmother. But I know even if this is true, my mother is taking advantage of my grandmas state of mind. From what I understand, my uncle (my mothers brother) has my grandparents Will. My mother was written off the Will a long time ago. The 4 Grandchildren are the only ones that are on this Will. I've confronted my uncle about this and he wants no part of this. I understand the will is not concrete until my grandma passes on.However My grandparents raised me. This breaks my heart, what my mother is doing. I don't know what to do or how I can help my Grandmother. I just don't want my grandparents possessions sold and my mother profiting from this. What can I do?

    ReplyDelete
  25. Hi Lynn
    My mom has been living alone since my Dad passed away but her dementia is getting worse and worse. She won't allow me to move in with her to help her, nor will she allow any hired or volunteer help because she does not acknowledge that she has dementia. Her house is for sale and she does agree to go into assisted living. Selling the house is the only way she can afford the monthly fees there. I am her POA and it's called an 'enduring POA'. Lately she has become paranoid and suspicious and thinks we are all trying to cheat her and steal her money. I know this is the dementia talking so I don't take it personally. But we are in a catch-22. She needs the proceeds from the house to move into assisted living, but the house is way overpriced so it's not selling. She won't sign anything because she's afraid of being cheated. Can I use my POA to lower the price and get a completed sale?

    ReplyDelete
    Replies
    1. Yes, you can, assuming that the POA has properly been activated. Read the document to see what needs to happen in order for you to use the document. An enduring power of attorney is either "immediate" or "springing".

      An immediate enduring POA will say that the document is effective immediately as soon as it is made, so you wouldn't have to do anything further before actually using it.

      A springing enduring POA can only be used if the contingency stated in the document is met. For example, it will say that the document comes into effect when a doctor signs a declaration. If that's the case, you have to get a doctor's declaration before you can use the POA, and that won't be easy.

      If you're not sure which kind it is, perhaps take it to a lawyer for some help in interpreting it.

      Lynne

      Delete
  26. Hi.my mother was in a home for over 4 years my brother has told me he was p.o.a well my mom passed away 4 months ago we went to the bank for my mom's estate only to find out I was also p.o.a asked my brother how much money my father had in his estate he answers me I don't know. Anyways my father had money only to find out theirs only 1000 dollars left in both of the accounts what do you sguest I do

    ReplyDelete
  27. Hello,

    I find myself in a bit of a predicament. My grandmother recently moved into an assisted living care home. My mother (POA) asked if I would like to stay in my grandmother's home since I was moving back home after school to be closer to my family. My grandmother was worried about leaving her home unoccupied once she moved, but with me living their it would be taken care of (house cared for, lawn cut, etc). This was agreed upon between my grandmother, mother and myself. There was never a rental lease set up because I thought it wouldn't matter because we are family. However, my mother (who has untreated mental health issues and emotionally and physically abused us as kids up until I left home) is trying to kick me out. This is the third time since moving in 2 months ago. I am not sure of what to do. She has no reasonable grounds for kicking me out (I didn't answer her call, I said something with a "weird tone", she doesn't like my fiance,she says I spend more time with my fiance's mother than her,I should be so greatful to her for "letting me stay in her mother's home", etc.). I hate walking on eggshells and I am not sure what my options are. It's getting colder but I don't want to spend hundreds of dollars on chimney cleaning and repair, to only be told that I have to "2 days to get my shit out". I was thinking about going directly to my grandmother about this and getting a rental lease signed, but she has early stages of dementia and I don't want to upset and confuse her. I also don't want to appear as "coercing" her into signing something like a rental lease. I am so lost lol, maybe I should just move out :(

    ReplyDelete
  28. My sister-in-law has been placed in a Ling Term Nursing Home in Ontario she has dementia. Her Husband has POA.
    There house has been sold and all her assets investment, pensions and bank accounts moved over
    To her spouse.
    Her care home is paid from a benefit if a previous
    Place of employment.
    Is this legal that her pensions go to the spouse when she is still alive

    ReplyDelete
  29. Hello Lynne,
    I read all the blog posts and didn't find one that matches this situation closely, maybe you can give some advice.
    My Father-in-Law is 93 and in the later stages of dementia. He owns outright a GTA house and a Muskoka cottage that he will not use again. Both of the buildings are older and would likely be torn down and rebuilt by new owners, given the value of the properties. He is now living in a permanent care home and has been for one year. His will states that his assets are to be divided between his 2 daughters when he passes.
    My wife and her sister have had joint power of attorney for a few years now as they shared the care duties while we was still at home. My wife did go down to part time to make this happen. Here sister is retired, OAS is her only income and she uses her Dad’s money for the rest of her expenses. This has been the case for several years now. My wife and I live in our own house, close to her Dad’s care home outside the GTA. Her sister moved into his house when he went into care, plans to spend the summer at the cottage, and pays rent on her vacant apartment in the GTA as well.
    The situation is that his retirement and investment income does not cover all the bills so they regularly need to draw out of these investments to keep the bills paid. They were advised by his accountant and lawyer to sell the house to correct this shortfall. There was also some mention of having her sister declared as a dependent as well but no developments have been made. The problem is that any attempts to discuss the house sale process by my wife are met with silence or even anger from her sister. My wife really wants to keep relations peaceful. On top of this, my wife also has to field requests to draw money, using the joint POA, from her sister, to maintain and upgrade these older buildings that her father will no longer use. Could you please explain what my wife’s rights and responsibilities are on this matter, and any suggestions for next steps.

    Sincerely, Husband Trying to Help

    ReplyDelete
  30. Our situation is slightly unique, in that my husband is a family of 3. Oldest sister is POA, and he has an older brother, my husband being the youngest.

    My husbands sister, suffers from clinically diagnosed paranoia and is POA for her mother who suffers from dementia but is not incapacitated.

    Sister is recently divorced, and living under the mothers roof.

    Her most recent bout of psychosis is making her think that we are trying to sell the house and she will be left on the street.

    We have told her until we are blue in the face, that NOBODY can sell the house including POA until the mother dies as this is listed in the will. She has my husband convinced that all her mother has to do is sign an "X" on a peice of paper and that would seal the deal.

    All I know for a fact is, that you cannot sell a house from underneath someone, but his sister is telling us a different story. (despite her mental health issues, we are not sure if she knows what she is talking about)

    Is this true? Is that all it takes is an "X" on the dotted line? His mother isn't completely incapacitated, but we do know she wouldn't fully grasp the concept of what is going on.

    ReplyDelete
    Replies
    1. It is possible that your sister in law could sell her mother's house, but if so, it wouldn't involve your mother putting any Xs on anything.

      If the mother has an immediate enduring power of attorney (POA), that is, one that came into effect as soon as the mother signed it, then your sister-in-law has the power to use that document and sell the house.

      If the POA is the kind that does not become effective until a doctor declares the mother to be mentally incompetent, then most likely the sister could not use the POA to sell the house. I say this because you advise that the mother is not incapacitated, leading me to believe that no doctor has yet made a declaration.

      So there are two parts to the question of "can she?". One is the type of POA that was signed. The other is whether that POA has been triggered (if it is not an immediate one).

      The person who acts under a POA does have the power to sell the house of the person he or she is looking after, even if that person still lives there. In real life, what would happen is a full-on fight between family members. The mother may or may not be able to participate in that. If she is able to make decisions (which seems doubtful based on your last sentence), no doubt she will object to the house being sold. Some family members will agree with her. Some won't. A judge will end up deciding the matter.

      Lynne

      Delete
  31. Great blog. Thank you Lynne.

    ReplyDelete
  32. Hello Lynne - great blog!
    Our trusted family friend of decades became my widowed mother's POA and soon after sold her home. He said it was mother's wish to divide the funds equally among the 5 children and naively, (- none of us had read you blog up to that time unfortunately) we accepted the money, gratefully. POA said everything was done through his lawyer. None of us questioned his integrity in doing so. Then, long story short, the POA betrayed mother by draining her account with $50,000 in unaccounted-for withdrawals. The first we heard of this was upon being served with an Court Application for the Public Guardian and Trustee, saying POA was being investigated for POA Fraud and Theft over $5,000. Then the Public Guardian's office called us and said they wanted us to all pay back the money from the home proceeds. Only two of us are in the position to pay anything back (the other three paid off debts with the money - and this was three years ago). How will they pay this back? Will the government garnishee their wages? Should it not be the POA that they go after instead of the children? Help!

    ReplyDelete
    Replies
    1. Unfortunately, the giving away of money unlawfully happens a lot. In many cases, nobody ever finds out and people get away with it. In other cases...well, you're living it.

      The person in error was the person acting under the POA. However, you have to understand what the goals are here. Sure, punishing a thief is important, but goal #1 has to be recovering your mother's funds. They want that money back one way or another. If all of you just simply gave it back, that would be the easy way, but it's not that realistic.

      In order for the Public Trustee to garnish someone's wages, they would have to obtain a judgment against that person. Whether that could happen involves a number of factors.

      The court application you've mentioned seems to be a criminal court matter against the POA. That is only against him and cannot result in a civil judgment against someone else (wrong court and wrong person).

      There is no doubt that during a trial on fraud and theft charges, if the POA is found guilty, there will be an order that he repay the money (i.e. "make restitution"). Seems to me though that he probably doesn't still have the money. If he does, fine. That will mean nothing happens to your siblings. But if he doesn't have it anymore, you can expect the Public trustee to keep after you siblings to repay it. Like I said, though, there would have to be an action in the civil courts for that. If they go that way and get a judgment against the siblings who haven't repaid, they can use all collection methods including a lien on the person's home, bank account garnishment, etc.

      The mistake might have originated with the POA, but all of you received money that was, in effect, stolen from your mother. I realize that you didn't know that, but it's the judge you'll have to convince.

      Lynne

      Delete
  33. Thanks for your expert insight Lynne, appreciate it very much. (The application was actually just for an order to have the POA terminated ... as part of the justification for doing that, the PGT was detailing his wrongdoings, etc.) Thanks again.

    ReplyDelete
  34. Hi.
    My grandfather is in a nursing home in the late stages of Dementia. My mom and her brother are both POA. My uncle is living in his home like a squatter - he has changed the locks, does not co-sign anything my mom needs him too (like removing my grandmas name from bank accounts since shes been gone for years, or just to co sign cheques to pay for the foot care for my grandpa...etc) or really does nothing but hinder my moms efforts. My mom would like to sell the house to use the funds to continue paying for his care and to keep him at the private nursing home he is living in (it's very expensive but his level of care is worth it). But she has no idea what to do because my uncle will literally do nothing.

    ReplyDelete
    Replies
    1. If your uncle refuses to do the job, he needs to be removed. This will involve asking the court to remove him. I normally don't like to jump right into "get the court to intervene" because often there are faster, cheaper ways to do things. But if he is just refusing to do anything - and why not, since he has a place to live for free - then your Mom needs to get rid of the need for his signature. Your Mom should get a lawyer to make an application to the court to show the judge all the ways in which your uncle is not only preventing your Mom from getting on with the job but is also taking personal, financial advantage of the situation. If she serves him with papers for this lawsuit, he might fight it, or he might just decide to give it up and walk away.

      If your Mom is successful in court, she should ask for costs against your uncle (i.e. the uncle will have to personally pay part of her legal fees) and if that doesn't pay the full bill, the rest can be paid from your grandfather's funds.

      It's strange, but I always find that siblings make the absolute worst co-attorneys and co-executors.

      Lynne

      Delete
  35. Here a situation a friend of mine mother is now in a care home.
    The daughter who had lived in the home pretty much her who life. And the brother is poached and is trying to evict her from the house to sell it .
    Can this happen.

    ReplyDelete
    Replies
    1. I'm assuming that "poached" is a typo and you meant to say that the brother has POA over his mother. If the right circumstances exist, then yes the brother can require his sister to leave so that the house may be sold. POAs have the right to sell property that is not being used by the person they are looking after.

      Just the fact that the mother lives in care does not mean that she has lost mental capacity. People go into care for different reasons. If she has lost capacity and the brother is now in charge, that is one important factor.

      Another factor is the wording of the document itself. Does it have any restrictions in it? Does it mention the house or any arrangements for the sister? Most people have fill-in-the-blanks documents so it might be too much to hope for that the document addresses what the Mom planned to do about the house.

      Another factor is the mom's will. Does she mention the house? I am wondering if, for example, she leaves the house to the sister in her will. If so, the brother should be doing all that he can to ensure that the house is kept for the sister.

      Lynne

      Delete
  36. My mother is in a home since April not to return and my one brother has POA. Both of my brothers, now in their 50s, have basically always lived in the home and continue to do so. My father passed suddenly about 3.5 years ago, My mother’s money is being used to keep the house and my brothers are continuing to be freeloaders for the most part...but this is my inheritance being used to keep a very nice roof over their heads. Am I not entitled to, or do I have a right to ask for, some sort of additional monies/compensation when the time comes to settle my mother’s estate when she passes? I mean, insurance and taxes alone are probably $12,000/year. My mom has Alzheimer’s but is still quite healthy otherwise. If she lives another 5 years, that’s $60,000 right there that doesn’t have to be spent, $20,000 of which would be mine etc. I don’t want to be ‘that’ family member but it just doesn’t seem right/fair... thoughts? Advice?

    ReplyDelete
  37. Hi my mother moved in to my brothers house 2 years ago he has power of attorney however they just sold her house, question that my self and 2 other brothers are wondering are we entitled to monies from the sale ? My father has passed away 3years now and he also use to live there with my mother , but since he's passing my mother has gotten I'll had open heart surgery and that's when they she and my oldest brother (power attorney) decided for her to live with him at his house ...

    ReplyDelete
    Replies
    1. The only way that you or your brothers should receive anything from the sale of your Mom's house is if she decides to give out the funds as a gift.

      She may not be able to do this. You said that your brother is acting under an Enduring Power of Attorney. This indicates that your Mom needs his help, but it is not clear to me that she needs help because of mental incapacity. If he is only helping her because of physical challenges, then she can still decide what she wants to do with her money.

      If your Mom can no longer make decisions about financial matters, then you should not expect to receive any funds at this point. The brother acting under the Power of Attorney does not have the legal authority to give out the house sale proceeds unless your mother has specifically made that decision. What he should be doing with it is investing it in her name so that she has the house proceeds to live on, and to give away any unused funds in her will.

      Lynne

      Delete
  38. Hi my mother has gone into a home afew months ago I have been paying all the bills for a few months my sister is poa my sister wants the house sold immediately also my mom has enough pension to cover her fees at nursing home as well as house is paid for and $450,000 in bank i said I could buy it in spring but not on this short notice everything is split 50/50 my sister said I could use my half to put down as a down payment can this be done if my mom is still alive

    ReplyDelete
  39. This blog is so incredibly helpful!!
    My mother has gone into care having developed dementia. I was looking after her for 3 years while she lived in her own home. Now that she has gone into a care facility she needs to sell her home to pay for it. I have a representation agreement but no power of attorney (my mother wouldn't sign one). How on earth will I be able to help her sell her house as she is now significantly cognitively impaired - she needs money but I don't think any lawyer would agree to engaging with her as she is not capable. What is the law on how I can help her to sell her house to pay for her care? She has left the house to me in her will but obviously she is very much alive and needs her money now! Thank you very much for any help you can provide. I am tearing my hair out.

    ReplyDelete
    Replies
    1. Okay, leave the hair where it is :)

      An option to consider is applying to the court for guardianship for property on behalf of your mother. This is what normally happens when a person experiences dementia but hasn't put the right documents into place. If you are appointed as guardian for property (aka trustee) then you would have the authority to sell the house. When you make your application, be sure to address the fact that the sale of property needs to happen.

      This order will also be useful for managing other assets if and when that becomes necessary, as it will most likely be very broad.

      Lynne

      Delete
  40. Hi Lynne,

    My grandmother was put into a group home a couple years ago, deemed mentally incapacitated by a provincial judge. My brothers and I are all designated POA's, to which my 2 brothers signed off with a lawyer on letting me handle the financial matters (such as the sale of her apartment). I just wanted to ask, as POA's, I know we are permitted to sell the condo, but how does the monetary aspect work here? Are we not permitted to touch any of the money until her passing? I'm a bit lost with this...

    ReplyDelete
    Replies
    1. You are allowed to use the money for your grandmother's needs. That could be anything from her basic housing to warm winter clothing to books and movies to entertain her. As long as your expenditures are a) for her only, and b) reasonable given the amount of money she has, you should be okay.

      Lynne

      Delete
  41. Hi. My husband has dementia, I have enduring P.O.A , he is currently still at home. When the time comes and I cannot any longer care for him. It is my understanding I can sell the house. My question to you is, can the funds from the sale be used to Purchase another home? Or do they have to be put in trust?

    ReplyDelete
    Replies
    1. There are some factors not stated in your question, so I'll have to make an assumption here. I'll assume that the house is in both of your names as joint owners.

      Yes, you can purchase another home. Using a POA, you have to be careful because you owe a duty of care to your husband to ensure that there are enough funds to pay for his care. Strictly speaking, half of the funds from the sale of the house should be put away for your husband's needs, but that may not be possible. The rules about funding care vary from province to province but you are allowed to own a house.

      Lynne

      Delete
  42. If an adult child cohabitated with a senior needing care in their own homeand contribute to other expenses and the senior's health gets worse causing them to be placed in long term care because of the nature of their sickness:

    The adult child has POA and solely listed on the will and executor (there is no other family),

    And the house and mortgage is solely in the senior's name but they do not want to sell it (hope to come back into the home to die/palliative) and wants to leave the house to the adult child: how does that happen?

    You can't leave a house to someone with and outstanding mortgage can you?

    ReplyDelete
    Replies
    1. Yes, you can leave a house with a mortgage. The normal situation is that the house passes to the beneficiary while the mortgage is paid by the estate. This assumes there is enough money in the estate to pay all debts including the mortgage. If there is not enough, the house may have to be sold to pay the debts.

      It is possible to specify in a will that the mortgage goes to the person who inherits the house, but mostly people don't do that.

      Lynne

      Delete

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