Legal Question in Real Estate Law in Indiana

My sisters and I have property in all three of our names. We want to transfer the property to just 2 of us as my older sister is in a nursing home on Medicaid and is having dementia issues. We also have her POA. Her POA states: " I, CJM, hereby nominate and appoint BWM, and PJD, and SJC, my co-attorneys-in-fact. if BWM cannot or is unwilling to act, then I appoint BHM to serve in his place as co-attorney-in-fact for me and in my name and stead to do each and every act, power or authority as provided specifically in IC Code, (here it lists a bunch of ICs), including General authority with respect to real property, etc.... "

In March of 2017 her spouse (BWM) filed this POA with the county court and then executed a QCD with him acting as her POA and signed over their marital residence to himself alone. She never signed it nor did she know anything about it.

He did it so he could qualify her for Medicaid.

Because of her mental state and the fact that she is on Medicaid, we want to transfer the property the 3 of us hold in joint, with rights of survivorship to just the 2 of us with rights of survivorship

1) Can I have a QCD prepared and transfer it as her spouse did on the marital property? 2) Will I have to refile the POA or can they use the one that he filed back in 3/8/2017? We do not want to bother her to sign the QCD because she would not understand why we are doing it or what it is for. The other sister lives in the residence. My older sister's spouse (BWM) and son (BHM) believe that they will get her 1/3 of the property on her death. But we do not believe so as the QCD on that property says "quitclaims to CJM, PJD, and SJC as joint tenants with rights of survivorship" . BUT we do not want to have to fight it if anything happens to my sister.


Asked on 2/02/19, 10:47 pm

1 Answer from Attorneys

Kenneth Wilk Rubino Ruman Crosmer & Polen

You probably can't do what you want to do because it's illegal and fraudulent. You cannot use a power of attorney to sign someone's name if the result is to benefit yourself. It's probably left best as is. The husband and the son don't have any rights to your three-way held property as long as you all three hold it as joint tenants with right of survivorship. If you don't, there isn't much you can do about it.

This really isn't a do-it-yourself project. You need to consult with a lawyer in order to do things legally and properly.

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Answered on 2/05/19, 12:33 pm

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