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Jewish World Review August 11, 2008 / 10 Menachem-Av 5768 Mom left in the cold when daughter changes her mind By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: I am 81 and in OK health. Shortly after my husband died five years ago, at my daughter's insistence, I moved in with her and my son-in-law. In order to make room for me, they added a small apartment to their home, so I paid them $85,000 to cover the expense. My accountant told me that because of the size of the check, I had to file a gift tax return, which I did. In addition, I have paid my daughter and son-in-law $850 each month for my share of the food and utilities. I pay my own way otherwise, drive my own car, etc. My son, who lives more than 1,000 miles away, visits and calls only occasionally. Last week, my daughter told me that she and her husband were going to sell the house and move to the coast, and that I would have to go into assisted living or move in with my son. She told me for the first time that my presence had put a strain on their marriage. I had understood that when I gave the money, the agreement was that I would stay with her until I became so ill that I needed a nursing home. My income from Social Security and retirement is $1,600 per month, and I have just over $150,000 left in certificates of deposit. My son says that I should get my $85,000 back. He and his family don't have room for me. I have lost all of my friends and have nowhere to turn. I am embarrassed to call the local community aging office. What can I do, and what should I do about my will and power of attorney, which name my daughter? A: While your daughter may voluntarily decide to return all or part of the "gift" you made (which will require her to file a gift-tax return if she reimburses you more than $12,000 in any one year), your son's suggestion that your daughter reimburse you the $85,000 is probably without legal basis, given the gift tax return you signed. Your CPA should have delved more into the purpose of the payment, and you should have seen a lawyer to prepare papers to protect your interests. Instead, it appears that you made an absolute gift to your daughter with no strings attached. The "agreement" you felt you had with your daughter was not a written condition of the transfer of funds. You filed a federal gift-tax return under penalty of perjury. Because of situations like this, if there is an agreement, it should be in writing and signed by all interested parties — even though you are dealing with family members and even if you don't think agreements should be put in writing. With your income and remaining assets, you should have no problem affording a comfortable independent- or assisted-living environment for a time, but if you live long enough and don't get sick, you could well run out of money. Since your daughter showed she couldn't be trusted, change you power of attorney and your will if you don't want her to get an equal share. But be careful whom you replace her with, since your son lives far away and has little contact with you, and you have no friends in the area. Consider making your power of attorney effective only if you are incapacitated (called a springing durable power of attorney) and, since you want to make sure all the rest of your money is available for your care, we suggest that there be no gifting authority granted to your agent. Whom to call? There is certainly no stigma attached to calling your local aging resources; they are there to assist elderly people. In fact, we believe that this should be one of the first calls you make. You may want to contact independent living and assisted living facilities in your area and begin taking tours to see which one you like. It may be a good idea for you to spend the weekend in one of the facilities to acclimate yourself. And maybe a lawyer's letter will dislodge some funds from your daughter if you are so inclined. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2008, Jan Warner

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