Dear Quentin,
I have an 86-year-old mother who is living with early- to mid-stage dementia. She has had a partner for 30 years. They live in Oregon and I live in Idaho; there is no common-law marriage in Oregon. In 2000, my mother put her partner on the deed of her house, while I, her only child, am not on the deed.
My mother and father purchased that house in 1972. I asked to be put on the deed to my mother’s home and I was met with a swift “no” from her partner. He said that since he had paid off the mortgage, the house is his. My mother and partner do have a joint bank account in which my mother has her Social Security and a military stipend.
As of two years ago, my mother had her driver’s license taken away by her doctor and, at that time, she gave medical power of attorney to her partner; I do not know if a financial power of attorney was signed. At this time, I am assuming there is no financial power of attorney. The house is estimated at $ 335,500.
My mother, her partner and I agreed that her last will and testament should split the house and any money in the joint account three ways between me and her partner’s two sons when they are both deceased. If my mother passes before the partner, I am sure any will they made together will be changed.
I found out that her partner has a $ 400,000 bank account under just his name, which will presumably go to his two sons. What actions can I take regarding her finances and house? It looks as if he’s holding all the cards and I want my mother to have a good few years because all she appears to do is sit in the house.
The Daughter
Related: ‘I see my greedy in-laws as misogynists’: I was a stockbroker in the 1980s and always kept my money separate from my husband’s. Is such self-protection justified?
“Suspend your judgment, unless you have real cause to suspect she is being neglected.”
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Dear Daughter,
Three decades is a long time to be in a relationship, but it sounds like there’s no love lost between you and your mother’s partner.
She may be at home because she is in ill health and needs around-the-clock care. And her partner is probably the only one providing it, unless he has caregivers to help. He may do all sorts of things for her that you are not privy to, given that you live in Idaho. Suspend your judgment, unless you have real cause to suspect she is being neglected.
I understand why your mother put him on the deed. When she added him, it meant he will more than likely inherit the entire home when she dies. That leaves her other property and accounts; if you’re the beneficiary of a trust, insurance policy or retirement account, you get the funds. If her partner is beneficiary, they’re all his.
From your letter, it seems like you believe you are entitled to a share, or a larger share, of your mother’s estate. As you say, that may or may not come to pass. If she predeceases him, it’s very likely that you will be out of time and out of luck. You suspect he is not caring adequately for your mother; he may think you have dollars in your eyes.
Assuming that this house is your mother’s largest asset, whether or not they are married is immaterial. Joint tenancy comes with the right of survivorship, so they’d each own an equal 100% share of this property, and if one of them died, the other would assume full ownership. That is the most common with couples (especially married couples).
With tenancy in common, there is no survivorship rule, and they can each own a certain percentage of the property; if her partner paid a mortgage equivalent to 45% of the value of the house, they could have agreed that he would own 45%. If your mother died, the rest would go to you as her legal heir. (It’s more likely they have joint tenancy.)
Power of attorney vs. conservatorship
Although the law varies by state, power of attorney is typically granted when the person is of sound mind, but if your mother’s dementia has progressed and she no longer has testamentary capacity — technically defined as the specific ability to make a will — you or her partner would need to be appointed as conservator.
As a fiduciary, you must act in the interests of the conservatee. “A guardian has control over the protected person and makes medical, housing and other decisions affecting daily life, while a conservator has control over the person’s property and makes financial decisions,” according to Oregon’s Legislative Policy and Research Office.
As the name suggests, a conservator must both conserve and protect your mother’s assets. “In Oregon, a protected person must have a conservator if they have assets worth more than $ 10,000,” the Legislative Policy and Research Office adds. “An individual may be appointed as both a guardian and a conservator.”
As your mother has been with her partner for 30 years, he would be the obvious and, likely, preferred choice. If there is a disagreement about who should be appointed, the court could appoint a bank, a trust company, the state Department of Veterans’ Affairs, or a professional fiduciary, says The Elder Law Firm, based in Portland, Ore.
The conservator must file an accounting with the court every year detailing all income and expenses, the law firm says. “Canceled checks or check images and account statements are attached to the accounting. Copies of the accounting and notices have to be mailed to the protected person and to other people and agencies required by law.”
It may be better for everyone concerned if you allow your mother and her partner to complete the remainder of their journey together.
The Moneyist regrets he cannot reply to questions individually.
Previous columns by Quentin Fottrell:
‘I live in a slum’: My ex-husband knocked down, then rebuilt my home and left it in foreclosure. Now he refuses to pay alimony.
‘We were all set to enjoy our retirement’: My son invested in startups and we bailed him out with $ 100,000. What now?
I don’t want to end up with stalkers’: Should I tell my heirs that I’m writing a will and how much they can expect to inherit?
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