Son tries to take out loan to pay for mother’s care

Dear Len & Rosie,

My mother requires constant care. I have hired a round-theclock geriatric care agency to look after her. It’s very expensive. I want to take a loan out against the house so mom can stay home, and not have to go to a nursing home. To do this I need to get the deed to the house which is entirely paid for. I can not get the deed out of the safe deposit box because its in mom’s name only; they said I need a court order plus the trust and power of attorney documents which I do have to get into the box. Can you get this court order by yourself if my mother’s physician certifies that she has dementia and is incapable of making decisions, or do I have to hire an elder law attorney? — Mark

Dear Mark,

Once recorded, an original deed isn’t very important. You could lose the deed and it won’t make a difference, because title companies conducting loan and sale escrows refer to the County Recorder’s records and not the recorded original deed.

If the safe deposit box is in your mother’s name alone, then you ought to be able to get into it with her durable power of attorney, although many banks resist accepting DPOA’s that are not on their own forms, even though it’s not legal for them to do so.

If the safe deposit box is in your mother’s name as trustee of her trust, you will have to follow the procedures of the trust to remove your mother as trustee as a result of her incapacity. Most trusts require one or two physicians to certify that your mother is no longer able to make her own decisions or protecting herself from undue influence.

If you don’t have a copy of your mothers DPOA, or her trust, then you need to find her attorney. Their name may be on the deed funding the trust, which can be obtained from the County Recorder’s office. If that doesn’t work, contact your County Bar Association and they will reach out to their members with a mass email asking the lawyer who prepared your mother’s trust to contact you.

Once you have your mother’s documents, review them with a trusts and estates attorney to determine what steps are necessary to allow you to take a loan out against the house.

Len & Rosie