Q: Mom has dementia. Husband refuses to pay for care. How can she have access to community property to pay for her care?
Due to Covid and mom's progressing condition, she is no longer living with dad in their shared home. Dad controls rents from RE rentals, and has made more money than mom. He will not pay for any care. My sisters and I are struggling to pay for mom's care. I have power of attorney to take care of mom's financial affairs. The only way dad will pay is for mom to divorce him so she has access to community property, pension and spousal support. How can I do this? I would like for mom to be able to qualify for MediCal.
A:
I'm sorry to hear about your situation. I am not a family law attorney, but I can tell you this: Your mother owns half of the community property in the marriage and all of her separate property.
Community property is property that was earned during marriage (assuming there is no prenuptial or postnuptial agreement stating otherwise). So, for example, if your father received a paycheck from work in the amount of $1,000, the law says that $500 of that money is your father's and $500 of it is your mother's. Your father may SAY it is all his because it is from his job, but California law says otherwise. So, if there is a joint bank account with money earned by either your father or mother during marriage, then you should be able to access it using your power of attorney. However, if only your father's name is on the account, then you will have trouble accessing the money and will need to speak with a family attorney.
Separate property is owned 100% by EITHER your father or your mother. Separate property is: (1) any asset owned before marriage that is kept separate, i.e., in a separate bank account and not mixed with any community property asset; and (2) an inheritance or gift given to a person during marriage. If your mother has any separate property, you can access that using the power of attorney and easily pay for your mother's medical care.
I hope that helps give you some background information and a family attorney answers the rest of your question.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.