I want to force my entitled brother to be guarantor of our mother’s nursing home

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Dear Moneyist,

My mother is 83 years old and lives in her home in Pennsylvania. The house she lives in has been in her family for over 40 years. Her mother lived there. My younger brother lives close by her in Pennsylvania as well.

Mom can’t drive anymore and is getting frail, so I would like to move her to an assisted living facility close by my brother’s home. She would have to sell her home to afford to live at that facility.

She has two homes: one that she refuses to sell and the other where my brother lives. He and his family lived there rent free for almost 27 years. (My mother paid the homeowner’s insurance.)

In May 2016, she gifted the house to him, so she feels compelled to leave me her house when she passes. I live in New Jersey.

Don’t miss: Should I spend my daughter’s $100,000 trust fund on private schools and ballet classes?

I have told her repeatedly that I expect to inherit nothing from her or my mother-in-law. I assumed that both could outlive their money. I think I can convince her that she should move to assisted living, but here is the problem: The facility wants a “guarantor” because mom is a little short of funds based on their formula and her life expectancy.

My wife and I think my brother should be guarantor, but he has never been financially responsible. If he refuses — and I expect he will — I want to tell him that when mom passes that I will sue him for half of his house, and include the 27 years of unpaid rent and homeowners insurance payments.

This money would have been part of her estate, and I would be entitled to half. Is this a hollow threat? I’m convinced he won’t agree to be guarantor.

Bluffing in New Jersey

Dear Bluffing,

You’d have a hard time proving that your mother wanted him to pay rent and insurance while living in her home, given that he is her son and, probably by most people’s accounts, they had a cordial relationship throughout their lives. What’s more, she was obviously of sound mind when this arrangement was made, so you’d have to come up with some kind of other excuse aside from elder abuse and/or that he was/is a squatter.

Your signature says it all: “Bluffing in New Jersey.” On the one hand, your nom de plume seems to suggest that such a move would be a lost cause. On the other hand, even using this as leverage and threatening him with legal action would only motivate him to formalize his living arrangements with your mother. It would cause more trouble and strife in your family and the issue at hand would get lost in the shuffle.

Separate your resentment over your brother’s refusal from your resentment over him living in her home rent-free. It sounds like you’ve both gotten pretty good deals, all things considered. What will happen to your mother’s other house? Will it go to you? Often in families, history, entitlement and responsibility all get mixed up into one big potluck. It can leave a bitter taste in your mouth one day and, well, burn you the next.

Also see: I earn $15 an hour and will inherit $150,000 — how do I secure my financial future?

Sit down with your brother and compare budgets and compromise. In the meantime, hire an elder law attorney. Don’t sign anything without clearing it with him/her first. The Nursing Home Reform Act prohibits nursing homes from requiring a third party from signing a guarantor as a condition of admission if the resident is a recipient of Medicare or Medicaid. Even so, be careful before signing. You can read more about that here.

It’s far better to sign your mother’s name on the contract and state who is acting as power of attorney, and sign and date the contract. The NHRA is a grey area. One 2015 case, Eades vs. Kennedy, upheld the “responsible party” provisions in a nursing home contract and imposed financial obligations on the family. In that case, the daughter and husband of the deceased resident had legal access to her mother’s care.

The U.S. Court of Appeals for the Second Circuit Court concluded there was “no actual conflict between the NHRA and Pennsylvania’s indigent support statute, explaining that the purpose of the NHRA is to protect residents from expulsion or denial of admission to nursing care facilities, not to shield family members from responsibility for the residents’ care,” according to Latasha, Davis & McKenna, a Pennsylvania-based law firm.

So tread carefully with your brother and the nursing home. You may, as someone in American politics recently said, be stronger together.

If there’s one thing you take away from this column, let it be that.

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