What are family’s rights to an incapacitated person’s property prior to their death?

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What are family’s rights to an incapacitated person’s property prior to their death?

My grandfather just had a massive stroke. Even if he gets better, my 2 aunts have already signed him into a nursing home without consulting the rest of the family. I realize as his next of kin, they are legally able to do that. My grandfather’s Will lists me as the executor of the estate with my 2 minor daughters as beneficiaries. My aunts are trying to go into his house and clean it out and start selling things and taking things home with them. Are they legally allowed to do that as well?

Asked on October 12, 2012 under Estate Planning, Georgia

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 9 years ago | Contributor

Things are never easy when family members disagree.  They become more difficult when money is involved.

Do your aunts, or one of them, have a power of attorney for your grandfather?  If so, they have the right to manage his assets - including his house and his property.  However, they must do so for HIS benefit, not their benefit.  If you believe the aunts are taking your grandfather's assets for their own benefit, you can take action to stop them.

If your aunts do not hold a power of attorney, then they have no legal right to manage your grandfather's assets without opening a guardianship.  If they petition the probate court to open a guardianship, you can appear and challenge their attempt to be named guardian.  If nothing else, your appearance will cause the court to scrutinize their actions.

If your grandfather requires nursing home care, he is going to need your family to get along.  He is also going to need your family to manage his assets carefully.  There are actions that an elder law attorney can take to preserve some or all of your grandfather's assets for his benefit while still making him eligible for Medicaid benefits in a nursing home.  It is CRITICALLY IMPORTANT that his assets be managed propertly under the law of your state or he may lose access to Medicaid benefits for a long time. No one in the family can just take his assets for themselves without causing a great deal of trouble for your grandfather - by great deal of trouble I mean something as serious as the family takes all of his assets, he needs nursing home care, Medcaid refuses to pay for it because of how the family managed his assets, and he has nowhere to go and no one to care for him.

I recommend that your family consult an elder law attorney immediately so that you make no mistakes and serve your grandfather's best interests.


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