mom in nurs home on medicaid she owns home disabled son wants to sell

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mom in nurs home on medicaid she owns home disabled son wants to sell

Mom is 83 in a nursing home for 3 years 2 broken hips, etc. and her home was sold but little to no profit. Medicaid not interested in that. She has another home that I, her disabled son lives in with HUD assistance. The mortgage payment is $1500 a month and I can no longer afford to live there. I would like to sell it as I have power of attorney for her but any proceeds may put her over the Medicaid requirement limit and they would boot her out of the nursing home as a result of that. I would like to transfer the deed to my 2 daughters but since there is a mortgage on the house I need to know if I can do that? That way any profit would be my daughter’s profit and not my mother’s. If you know of another way around the problem please let me know. Otherwise I will just have to let the bank foreclose on it. This is in Pinellas Park Florida Pinellas County. The amount owed is 114k and i do not know how much it will sell for. Maybe not a problem but maybe.

Asked on August 29, 2018 under Real Estate Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Unfortunately, there are three reasons why you can't transfer the property to your daughters:
1) You write that there is a mortgage on the home. While it would not be a bad idea to check the mortgage paperwork to be sure, mortgages almost always bar or prohibit the property from being transferred to another person without paying off the mortgage.
2) A POA may give you the legal authority to transfer the house, but you are also bound by a "fiduciary duty"--an obligation imposed by law--to act in you mother's interest, not the interest of other people. Transferring real estate to your daughters so that they, not your mother, could own (and therefore control) the home and get any profit is NOT in your mother's interests; this act would appear to be a breach of fiduciiary duty and could make you personally liable.
3) Medicaid (i.e. the state agency adminstering Medicaid) has the right to undo any transactions done withing 5 years of Medicaid paying for care, if the transaction was not for fair market value. If the home has any value, if you don't sell it for that value (i.e. if you just transfer it to your daughters), that will not be a fair market value transaction and Medicaid could undo it.


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