Category Archives: Blog and FAQ

Can I purchase a rifle, pistol, or get a carry permit?

Q: Can I purchase any of these with just a DUI and sSmple Assault misdemeanor on my state police background check that I ordered by mail?

A: I would have to look at the PA State Police criminal history record, but, I would think not, if either of those offenses was graded as a misdemeanor 2. A prior conviction for a Misdemeanor 2, will disqualify you from possessing a firearm in PA.

What are the options if a Power of Attorney refuses to do the job of a Power of Attorney?

Q: My father has my sister as his Power of Attorney, due to having issues with the law (DUI) and not being able to take care of his own financial obligations (Bills, Mortgage, and the like). We (my two sisters and I) sat down to figure out the best person for the job, and because of her strong financial stability, it was decided that the eldest daughter should take that responsibility. That was February of 2015. By September of 2015, my sister said she was not going to have anything to do with him, and refused to relinquish power of attorney. My father is now in Foreclosure with the house, bills were several months behind, until I moved back in. I cannot afford to cover the mortgage, otherwise I would have. My father spends well out of his means, and I have no legal basis to stop him. My sister was supposed to pay all the bills, and then have a card sent, so I could make sure that all his other needs were met. I love my family, but my dad is now living in a motel room, because of having nowhere else to go. What can I do? (Ligonier, PA)

A: If your father is competent, acknowledges that he needs help, and is willing to appoint you as his agent on a new power of attorney, he can simply revoke the present power of attorney and sign a new one. As mentioned, even with the power of attorney in place, he can still handle is own finances-write checks, spend money, etc. If he is not competent, unable to care for himself or danger to himself, you may want to consider having yourself appointed as his guardian. To do this you will need to have a lawyer file a petition with the court and a hearing will be held. You need to consult with an elder law attorney in your area.

Can mom transfer $10K to me without IRS problems?

Q: I am investing my money (trying to grow it beyond being in a regular savings account) and my mom has around $10K that she would also like to add to my money but we are afraid it may raise red flags with the IRS. The transition would be from one bank to a different bank. Also, I am in Pittsburgh, she is in South Carolina. (Regent Square, Pittsburgh, PA)

A: I think you should ask the bank you plan on depositing these funds in to. My recollection is that businesses must fill out an IRS form for every check or cash in the amount of $10,000.00 or over. I believe banks only report deposits from individuals to the IRS if it is cash or of a suspicious nature. These types of deposits occur frequently and the bank doesn’t like to turn in their own good customers. Another consideration is Federal Gift Tax. This amount is under the Federal Gift Tax limit and therefore there would be no concerns regarding your mother’s income taxes. Also, you may want to consider the potential consequences of this transfer if mom needs to apply for Medicaid in the next five years. If she does, this transfer may be render her ineligible for the value of the transfer to you.

Do I need an attorney for a summary offense?

Q: My 13-year-old daughter was charged with a summary offense of Harassment of a former friend. She received a citation with a $250 fine. Do I need to contest these charges and retain a lawyer or should I just pay the fine? Also, will she have a criminal record and can this be expunged? Thanks. (Mt Lebanon)

A: I find it odd that she is 13 years old and cited. Do not check “guilty” and send your money in for the fine. Check “not guilty” and request a hearing. If it requires money to be sent, send it. With no criminal history, this is the type of case that can be worked out without a conviction and a fine. This will be much easier if you have an attorney who is familiar with the court system guide you to this result.

JUVENILE LAW, CITATION, HARASSMENT

Do I have a right to know who the POA successor is?

Q: My oldest sister is POA for my mom for about 3 years now. She has made some awful business decisions and wasting money on things that aren’t needed. She refuses to do much needed repairs for mom’s home that mom still lives in and I am mom’s primary caregiver as I live here with her. And sister POA refuses to let any of her 4 siblings know anything about mom’s finances. She refuses to let any of us know who her successor is in the event she can no longer carry out the POA duties. She also has major health issues. She just says, “it’s none of you”. This is completely against my mom’s wishes. She acts as if we have no right to know anything about anything. Do we have the right to know? She has become very suspicious. (Pittsburgh, PA)

A:  I can think of no law that requires your mother’s agent on a power of attorney to inform anyone of the contents of the document. Yes, it would be nice if she would, but she is not violating a law for not doing so. If your mother is competent, she can revoke the power of attorney given to your sister. If mother is not competent or is under duress or undue influence from your sister, the only way of having sister removed as Agent on the power of attorney is by seeking to be your mother’s guardian. This will require a lawyer. You can also hire a lawyer to make a written request for a copy of the POA document. If your sister refuses to produce it, the attorney can advise you on whether to petition the court to order production of the POA. If your mother is competent and trustful of you, I do not understand why she doesn’t answer your question. Your best bet would be to consult with a lawyer with whom you can share all the facts.

Can power of attorney be revoked?

Q: A family member obtained medical, and general power of attorney, through a lawyer, for my grandmother, who has Alzheimer’s. My grandmother had Alzheimer’s when she filled out the forms as well. I’m wondering if we could get revocation forms, signed, notarized with a witness, and then filed with the County Clerk’s Office, without needing the service(s) of a lawyer, and have it be made official and indisputable. Any suggestions? (Coraopolis, PA)

A: As pointed out, one can still be viewed as legally competent, even with dementia. It depends on the severity of the dementia. Most Power of Attorney documents have language which states that the document can be revoked in writing by the Principal. Check the power of attorney document to see if it contains such language. Even if it does not, and grandmother is competent, she can sign a simple letter or document stating that her prior power of attorney is revoked. You should take the revocation document to all entities and persons who are relying on it in providing services to your grandmother. For example, banks, her doctor, etc.

Can I force a sheriff sale from the 2nd lien position on a residential property?

Q: Borrower is current on first mortgage, but over 120 days delinquent on the second mortgage. Borrower has refused a loan modification and does not wish to sell the home. There is approximately $70,000-$90,000 in home equity. (Pittsburgh, PA)

A: You cannot go right to Sheriff’s Sale. You must file a foreclosure proceeding first. Moreover, your mortgage will be second to the first mortgage holder so the first mortgage holder will need to be paid first.

Must I sign for house sale by ex-husband?

Q: My ex-husband purchased a home during the time of our marriage four years ago. He didn’t put my name on the loan or title. It has now been two years since our divorce and he says he may need my signature to sell the property in Pennsylvania. Do I have any legal requirement to sign this? I have had nothing to do with the property. I was not involved with the purchase and my name is not on any purchase or loan documents.

A:  As the home was purchased during the marriage, you obtained rights in the home through the PA Divorce Code. It is common for a spouse to have to “sign off” his or her rights under the PA Divorce Code in these situations.

What must I do to relocate with my children with no custody order in place?

Q: I plan to relocate 35 miles away from my current residence in about a year to move in with my fiancé and his children. I have 3 children from a previous marriage. We never had a custody order. For the last three years my children have been with me full time with my ex seeing the kids every other weekend. He has taken them extra days but not many. He pays child support. He also lives in the same school district as me, however, he never asks for more time, calls the kids, and is not actively involved in any of their school or sports activities. He has gotten word that I am making plans to move within the next year and is threatening to ruin those plans by possibly filing for 50% custody. I believe this is solely to have his child support payments reduced. I just need to know what my options are. Thanks!

A: It likely involves a new school district and since he seems opposed to it, you may want to get ahead of it by serving him and filing the necessary paper work for a relocation hearing which should be a Notice of Intention to Relocate with a Counter Affidavit for him to sign or not sign.

How can a Judge deny my right to withdraw my guilty plea?

Q: I pleaded guilty because I was promised Drug Court. The deal exploded and the DA refused to agree but I entered the plea anyway as I was nervous and my attorney was little help. Can the Judge deny my right to withdraw my plea? I have not been sentenced yet and have no idea what my sentence will be and don’t trust anyone. Is there a civil rights violation here?

A: You can file a petition to withdraw your plea at any time prior to sentencing. You must file a written motion making the request. The decision is entirely in the judge’s discretion. Usually such requests are granted. Be aware however, that now you will face trial unless you can negotiate a deal with the DA that is acceptable to you. I do not see a civil rights violation here.