As we enter the Halloween season, I will share with you a true, scary story.
Several weeks ago, a Financial Advisor called me to ask my help for his client. His client has an elderly mother living on her own, with the assistance of a caregiver. The Client was concerned that her mother had been taken advantage of by the Caregiver. At some point the Caregiver was evicted from her own residence, and convinced Mother to allow her move in with Mother’. Through a course of foggy and uncertain events, Mother eventually deeded ownership of her house to the Caregiver, which Caregiver accepted by inviting the rest of her family to move into what was Mother’s house.
How Could This Have Happened?
When the Client discovered the transaction, she was panicked. “How could this have happened? Certainly it can’t be legal, right? How do I kick the Caregiver and her family out of my mother’s home?”
Unfortunately I was not able to give the Financial Advisor good news. Law enforcement will not evict the title holder (absent domestic abuse, or other criminal behavior), and because the Caregiver’s name is on the deed, law enforcement will not dig into the legitimacy of the underlying transaction. In order to remove the Caregiver from the title, and the premises, the Client (or her agent) must file suit against the Caregiver. While it is likely the Court will see the earmarks of undue influence, duress, coercion, etc., and void the transaction, in the meantime, the Caregiver owns the property and can do with it as she so chooses. This includes selling it, renting it, outright evicting Mother or even losing it to her own creditors.
This is not a rare scenario. Quit Claim Deeds are easily obtained via the Internet, and even a stack of blank Quit Claim Deeds rests on the counter at the Clerk’s Office. While a Quit Claim Deed does nothing more than giving up whatever rights the transferor may have, it still has the power of removing the transferor from ownership.
Why would Mother transfer her home to the Caregiver in the first place?
Of course we can blame potential Dementia, Alzheimer’s, Stroke, etc., and say that she had diminished capacity and therefore legally did not understand the result of the transfer. That’s a strong presumption considering that she required a caregiver in the first place. However what would cause her to want to give her house to the Caregiver? These types of transactions, whether involving real estate, a bank account, or any other asset, hinge on the way an elderly person perceives their caregiver.
Because of the way incapacity-based conditions manifest, the short-term feelings a person has about their caregivers tend to overshadow the realities of the long-term relationships with family members. For example, if a person with Dementia has been taken care of by a caregiver for the past several months and has begun to trust that person, their condition may prevent them from remembering the years of care their own child gave to them before the caregiver was hired. In many cases, they may believe their child forgot about them, or is no longer around. Adults with diminished capacity find joy in giving their assets to those who care for them, and often do not weigh the value of the gift proportionately to the length of the relationship.
What Actions Can Your Clients Take?
As this true story warns, it is vital that your clients thoroughly vet their parents’ caregivers before hiring them. Your clients should understand that a deep emotional attachment can form between their loved one and the caregiver. In instances like this, where there is only a reaction to a transfer that already has occurred, the only remaining solution may be a court proceeding. Forcing a parent to court to account for a transfer he or she may not even remember, or incorrectly justifies, would only serve to drive a wedge between the parent and the adult child at a very delicate stage of life.
While a solid estate plan is important for all adults, maintaining a close relationship with your client, and encouraging your clients to continue to remain involved in their parents’ lives, is the only way to recognize when these fraudulent or abusive transactions occur.
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