Eric P. Feichthaler

Dear Mr. Feichthaler:

My father is elderly and can no longer take care of himself in the home. He is moving to an assisted living facility next month. He wants to make sure that the home passes to me and my brother if he dies. He also may decide to sell it if it becomes clear that he is unable to return. What do we need to ensure we avoid legal issues on the house, as well as handling our dad’s health and financial matters?

Lauren H.

Dear Lauren:

I understand how difficult it is when the best option for a parent is assisted living. Typically, we work with older clients that have taken care of their own financial and health decisions their entire lives, and for many this is a difficult transition to need the help of others. Thankfully, in your case, he has adult children ready to help.

First, you will want to title the home so it bypasses probate or other legal matters. Many of my clients choose to sign an Enhanced Life Estate Deed. This deed names beneficiaries that will take ownership of the property upon death with the recording of a death certificate. During the owner’s lifetime, the property will continue to benefit from homestead protections and tax exemptions, when it is still the owner’s homestead. The owner also continues to be empowered to sell the property if he so chooses.

For some, forming a living trust can be beneficial. A trust is typically recommended when there are many beneficiaries, or when one of the beneficiaries cannot accept direct ownership of the property. With this strategy, the property is deeded to the owner’s trust, and the trust will dictate who will be the successor trustee, and who will benefit from the value of the home. Similar to the Enhanced Life Estate Deed method, the owner will still have the ability to sell if he so chooses.

Also, especially when someone is having issues with their own care, I recommend they sign advance directives. By designating someone with authority through a Durable Power of Attorney and Health Care Surrogate Designation, your father can utilize you, your brother or whomever he trusts to handle all financial matters on his behalf, and to discuss health care with medical providers. These documents typically authorize the agent to make medical decisions on his or her behalf, but only in the event they cannot make those decisions independently.

The decision to move to assisted living is a delicate matter with a lot of legal and emotional issues to consider. I am sure your father appreciates your efforts to help him through this difficult time.

To you, and all of our friends and neighbors in Cape Coral and beyond, I wish you a Happy 2024.

Eric P. Feichthaler has lived in Cape Coral for over 35 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Cape Coral to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, and Cape Coral Kiwanis. He has been married to his wife, Mary, for 22 years, and they have four children. He earned his board certification in Real Estate Law from the Florida Bar, and primarily practices in real estate law and wills and trusts. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator. He can be reached at eric@capecoralattorney.com, or 239-542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.