Can I execute my sister’s TODD to provide for her mentally challenged children?
I have a POA for my sister who is seriously ill and has two mentally challenged sons. As her POA, am I allowed to execute this TODD to take control of her home for the sake of providing for the protection of her children as she wishes me to do in the event of her death?
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If the POA allows for that, yes. I don’t know exactly what is in place or what you’ve prepared, so I can’t make a guarantee. But if no one is going to object, you should be fine.
You need to record the TODD on title. Sign it using your power of attorney. You may also want to record the POA itself for proof of authorization. A title company may want that if it’s ever sold down the road.
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I have a POA for my sister who is seriously ill and has two mentally challenged sons. As her POA, am I allowed to execute this TODD to take control of her home for the sake of providing for the protection of her children as she wishes me to do in the event of her death?
StephenH129
I understand the importance of ensuring the well-being of your sister's mentally challenged sons. Are you looking to understand the legal implications of using the Power of Attorney (POA) to execute a Transfer on Death Deed (TODD) for her home?
Yes.
Lexi, Chatbot
Have you discussed your sister's wishes regarding her home and the care of her children with her, and does she have any specific instructions documented?
Yes. She wants the home sold and to do what is necessary for her sons.
Lexi, Chatbot
Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you with your situation.
Her husband died over 20 years ago and at that time he willed his interest in the home over to her only.
StephenH129
Hello! Thanks for using AskaLawyer. My name is Stephen, and I am an attorney ready to answer your questions with top-quality service. Just a few quick things before we get started: I’m sorry to hear you are having these problems. I know that can be frustrating, but we can get this resolved quickly.
Yes, if the POA form allows for that action. Most professionally drafted POAs would include such powers.
She is not on Medicaid or any other assistance. Since time is of the essence, with the document I have attempted to draft, will I be able to take control of the property and do what I have to do to provide for her sons without probate?
StephenH129
If the POA allows for that, yes. I don’t know exactly what is in place or what you’ve prepared, so I can’t make a guarantee. But if no one is going to object, you should be fine.
You need to record the TODD on title. Sign it using your power of attorney. You may also want to record the POA itself for proof of authorization. A title company may want that if it’s ever sold down the road.
StephenH129
Devil's advocate -- won't this affect the kids' benefits?
No, it won’t. As a precaution, I thought this would be best in case she passes. I need to change the utilities over into my name. I’ve already consulted her bank and I’m waiting for their legal department to accept the POA. I was told it’s just a formality since she is not able to come to the bank or call them about it.
She only has a house and a car, both of which are paid for. If I transfer the deed and title to each over to me, would there still be a need for probate in her case? The only other things she has are personal belongings and furnishings.
StephenH129
No, but you transferring things to yourself isn’t proper. I thought it was going to the kids upon her passing?
No, they are mentally challenged and I will be responsible for them. So, as the POA, I should not transfer ownership of the home to myself?
Should I transfer it to her sons?
StephenH129
Then you own it. I don’t love that because it’s self-dealing.
But that could impact their benefits. I don’t think this is well-planned right now. There are too many questions. You need to retain a local attorney. If the kids lose benefits, that’s a huge problem.
You can find a highly-rated local lawyer on a lawyer review site like Avvo.com for your city. I further recommend justia.com for potentially finding a local attorney. You can also use the local State Bar Association. You would need an estate planning attorney. There are lots of options to find a good local lawyer.
She wants me to sell the home and provide for the care of the sons. They have no benefits. She just always took care of them on her own.
StephenH129
Then it should go to the kids or be sold—not to you.
I agree. This came up so sudden, I had no clue that Id be put in this position. I'll transfer it to the kids.
StephenH129
Sounds good. Anything else I can help with or clarify?
How about to me and the kids? How would that play out?
StephenH129
It’s still you getting half a house. Tax? Income? I don’t know how that impacts you personally.
Is there a mortgage?
No.
StephenH129
Ok. Then it’s easier. It’s just you. I don’t know how this impacts the three of your lives personally.
Tax and income wise, I am a tax specialist, so I got that covered. Just wanted to be able to do what I have to do for them for a while and to eventually sell the property since I may have to bring them to live with me.
StephenH129
Then it’s fine legally. If no one is objecting, self dealing is ok. I’d get consent from the kids in writing to be safe.
Will do. Thank you for your help.
StephenH129
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