Category Archives: Blog and FAQ

Charged with contempt of court as a minor?

Q: If a 17-year-old minor involved in a case as a witness, refuses to attend and testify in court, what charges would he/she be facing? Could they receive a fine, or even jail time? (Peters Township, PA)

A: The only circumstance in which a person can be legally obligated to appear in court and testify is if they were served with a Subpoena. As this person is a minor, his parents or guardians must be served. If the parent or guardian is served with the subpoena and do not want to bring their son to court, they should seek the advice of a lawyer as to whether they have legal grounds to not comply, such as the minor’s 5th Amendment rights or a real threat of retaliation or witness intimidation. If the parent or guardian has no such valid reason, then they can be held in contempt of court by the judge and the judge can issue an order or warrant and have them brought to court by sheriff or police.

Can someone change anything on a will that was signed?

Q: My mom’s not going to be here much longer she’s being released to come home under hospice care. I have the will. The house goes to me and my sister but my sister is power of attorney over my mom my mom doesn’t trust her anymore. I my mom able to change anything on the will? (Lawrenceville, PA)

A: To change the content of a will, normally, a new will must be drafted. One cannot simply make changes to a will by writing on it, or crossing things out. Codicil’s (additions or addendums to wills) were used at one time, before the advent of word processing when wills were handwritten or typewritten. Rewriting the entire will to change one thing was unduly time-consuming and burden. However, the legal requirements for a will and a codicil are the same. The codicil must be executed with the same formality as if it was an original will. Thus, in modern times, most people just draft an entire new will. As long as your mother is competent, I would suggest having her make an appointment with a lawyer who can consult with her and draft a legal document that suits her testamentary wishes.

Can I sell my mother’s home?

Q: My mother is currently in assisted living and is broke. I am selling her house and would like to know the best way to handle the proceeds. I was advised to put the money in a single premium immediate annuity naming the estate as beneficiary and myself as second beneficiary. I thought annuities carried high fees. Will I be able to pay her monthly bills which will continue to increase from this type of account? And at some point, sooner rather than later I will need to apply for Medicaid so need to know best way to handle the proceeds in that regards. (Clairton, PA)

A: As you may know, there is a 5 year look back period when one applies for Medicaid funding. All transfers of the applicant’s assets for less than fair market value, can result in the applicant being ineligible for Medicaid funding to the extent of the value of the assets. If mother will be receiving Medicaid funding in the next five years, Medicaid will have an interest in these proceeds. There are more details that need to be known before you sell this home, and you should seek the advice of an experienced attorney who is versed in Medicaid regulations. Generally, you should only sell this home for not less than market value and have at least on appraisal if there is any doubt of the value. You should document everything pertaining to the sale. Once you obtain the proceeds, you should and use them only for your mother’s benefit, whether that is investing them for her or using them to pay for her care. An attorney can also advise what if any exemptions or exclusions from Medicaid may be available.

I’m a Black Sheep. My brother has always been the favorite

Q: I still live with my parents and have a learning disability where I can’t get a job. My brother on the other hand, works two jobs for sixteen hours a day for almost 40 years. He has a beautiful two-story house, 4 cars and at least 4 big-screen T.V.s. My parents are very proud of him and love him to death. I’m 59 years old. I haven’t worked much in my life and have no retirement or much social security coming my way. My parents loathe me for this and treat me like trash! I told them if things get to worse then I’m going to live in the streets and be homeless. My mom said, “well go ahead, there’s the door”. I heard that she and dad are going to leave my brother their weekend home up in the mountains. The guy is going to be wealthy! I’ll be eating out of trash cans with just a $1.50 in the bank.

A: If by chance you are collecting SSI or Medicaid for your disability, you may become ineligible for those benefits if you receive money from your parents. There is a way for your parents to leave you money or gift money to you and that involves establishing a special needs trust. They would need to see an elder law attorney to set this up.

Can an heir contest a will if removed?

Q: A mother has a will made due to increasing age and to be prepared, she has two sons whom were both given her estate to split with special directions. If one wanted to live in the home the other would have to buy out the other half. One of the sons since has become disrespectful and has made death threats to the mother. The mother wants to re-write the will leaving that son out of the will. If and when that son contests the will what will be needed to uphold the will’s contents so the disrespectful son received nothing? (Pittsburgh, PA)

A: The mother needs to have her new will prepared by an attorney. Anybody can say they may “contest” a will if they feel they were excluded, but doing it is difficult. They will need an attorney to challenge the will and the legal grounds to do so are very limited and generally hard to prove. An attorney can be a witness to your mother’s competency and will give the added assurance that the will has no technical deficiencies that would render it facially invalid.

Can child-on-child sexual experiment be charged 7 years later?

Q: I have a 15 year-old and a 10 year-old, age difference is 5 years and 1 day. They apparently experimented with oral copulation, no ejaculation nor sexual attraction. There was no violence was used, however there was a minor threat. Could the 15 year-old be charged 7 plus years after the incident?

A: I am sorry to say that the 15 year-old who is now an adult can be charged as an adult in the adult criminal justice system with felony charges and face incarceration, in addition to Megan’s Law registration. If he or she would have been charged at the time of the alleged offense, the prosecution would have been in juvenile court. As a minor, treatment and therapy would have been ordered with the potential of having the charges withdrawn or expunged. These sex crimes statutes are very powerful. The best you can do is hire a lawyer and defend this. There will be defenses available such as delay in filing (prompt complaint) and lack of physical evidence. In addition, the victim may be appointed a guardian ad-litem and/or assigned victim’s advocate which may make matters worse or better for you as a parent.

What are my options and next steps?

Q: I am writing on behalf of my mother. She purchased a house in Georgia with her daughter approximately 8 years ago. Due to her daughter neglecting her health and well- being she came to live with me about 2-3 years ago in Pittsburgh. My mother has a trust that includes her share of the house and I am the trustee. Her daughter was able to refinance the house without my mother’s signature. The mortgage company has sent a notice to the trust, my mother and her daughter for the money. The notice from the attorneys for the mortgage company say the money was distributed in error. My mother nor the trust received any money, but I believe her daughter did and may have purchased a new home with the money. Your guidance on this matter would be greatly appreciated. (Baden, PA)

A: This is somewhat complicated and you need a lawyer in GA. My thought is that if this is a fraudulent transfer, the bank cannot legally foreclose on the house. However, my experience with banks lead me to believe that they will try. Do not do this on your own and try to negotiate with the bank. An attorney needs to review the trust instrument as well as the deed which should be titled in the name of the trust. In addition, your attorney will need to look at all the documents indicating how your mother’s daughter got a loan on a house titled (hopefully and presumably) in the name of a trust. Do not wait to act on this.

Must the Assistant DA need approval from the victims for plea bargain?

Q: I have a case involving multiple counts of different misdemeanors where I am the victim. I live in Pittsburgh, but this incident is pending in Armstrong County. We are up to the Pre-trial Conference stage. I read that this is where the lawyers start to consult and exchange evidence to determine the merit of the case? My question is does the ADA who is representing us have the ability to plea bargain the case without getting our approval to the settlement? Or should we be asked or give our approval to the whether it can be settled or moved to trial? (Monroeville, PA)

A: I can only speak to the practice of the DA in Allegheny County which is to always seek the input of the victim and the police as to any plea agreement. The DA will override any opposition from the police or victim if he or she thinks the position of the police or victim is unreasonable.

Is it against the law to get the same DA you had in a prior case that you were found not guilty?

Q: My husband had a prior child sexual assault case that he was found not guilty of. He recently had another false accusation, and has the same DA. I feel like that is impartial and just like a jury, there should be no ties It is like it’s personal now. Is this against the law, or is there a way we could say since she has prior ties with the last case she’s impartial to this case? (Penn  Hills, PA)

A: No, it happens all the time. If she was in private practice, she could defend him on two criminal cases, one being subsequent. She could also sue him on two civil cases, one being after the other. In either scenario, she may not be able to defend him on the first case, then prosecute him criminally (if she takes a job with the DA) or sue him in civil court, on the second case. Is she prejudiced against him? She could be if she thinks he was guilty of the first case. Will it matter, probably not. If there was prosecutorial misconduct alleged or found in the first prosecution, that could be reason for the defense attorney to file a motion requesting the DA to recuse him or herself from the prosecution.

How can I file a petition through the courthouse to receive my firearm back?

Q: Two years-ago I was convicted of a misdemeanor of simple assault attempt and had my firearm confiscated. The police told me I can have my property back but I must file a petition with the courts. (West Mifflin, PA)

A: With the conviction, you may now be ineligible to possess the firearm. I would need to know exactly what grade of offense you were convicted of. I would speak with a criminal defense attorney about a petition to return property. If it is economically worth it to spend the money, perhaps a transfer to a friend eligible to possess a firearm can be arranged through the petition.