Category Archives: Elder Law

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 I get power of attorney over my mother?

Q: My mother is extremely ill and is refusing to get medical treatment. I’ve threatened to call an ambulance, but she says that she’ll refuse to go to the hospital. Can I get power of attorney over her? If I can’t, can I have her sign something that says that she refused all medical treatment, that way I won’t be charged with anything? (Aspinwall, PA)

A: If she will not voluntarily sign a Power of Attorney over to you or someone else, you cannot compel her to. If she is competent and wishes to sign one, call an attorney and set up a consultation. If she will not, or cannot, sign a power of attorney, you will have no choice but to seek a guardianship over her. It would be wise to consult with a local elder law attorney to determine if filing to be her guardian is advisable.

Can I be charged with neglect as caretaker of my uncle?

Q: I am caring for an elderly uncle who has paranoid dementia. I have no real social support network of friends or extended family. I am honoring his request and refuse to place him in a nursing home. He wanders and and has shown up at neighbors’ houses while I attempt to shop for groceries or pick up medicines. The police have been called about the situation particularly when he lands up at people’s houses. The police have told me that I could be arrested for neglect if they catch him wandering again? How can this be? I have not committed a crime. I’m doing the best I can on a VERY limited income. If I place him, I will go against his wishes and will become homeless. What can be done about honoring his requests and protecting my home, that treats all with respect. (Moon, PA)

A: Based on the information you provide, it seems like your uncle is at risk of hurting himself. Although it is admirable what you are doing, it may not be enough to keep him safe. He may need professional help such as nursing care or in home services. You have been warned by the police which causes me concern that if your uncle ends up injured or worse, you could be charged with several crimes. This is usually a last resort. Although well intended, you have assumed the role of caretaker. First, you need to get him to a doctor as soon as possible. He may need of medication and a doctor can assess him for competency. Next, you need to talk to an elder law attorney or a social services agency about potential services and you or an agency becoming his court appointed guardian. It may be against his wishes, but he is not thinking clearly given his mental health diagnosis and dementia.

Who has final say in healthcare decisions, a spouse or an attorney in fact?

Q: My 95-year-old stepmother is facing decisions about rehab options. My father, married to her for 27 years feels he should be the one to make decisions for his wife (she has dementia and Alzheimer’ disease). Her daughter feels that she should since she has durable POA. (Wilkins, Twp.)

A: It depends if the power of attorney contains a health care power of attorney. Generally, a general durable POA with no other title, authorizes an agent to handle financial matters. You will need to examine the POA. If it is not a health care POA, then the husband will likely be considered next of kin by the hospital and to whom they look with regard to medical and health care decision making.

Can my mother grant me a power of attorney if her domestic partner is not willing?

Q: My mother is 80 years old and showing signs of dementia. 14 years-ago a man lived in her house. Throughout those years my mother lived with uncertainty and anguish because this man is alcoholic.  am vacationing in her house now. But the man harasses me. I want to leave the house but I cannot bear to leave my mother in her situation now.  The man does not work. He claims that he is a paid caregiver of my mother. But now he controls her finances. She derives her income from a survivorship pension from her husband a federal employee who passed away in 1994.

A: This is a difficult situation. I suggest you speak with a local attorney who handles elder law and guardianship. Yes, mother can appoint you as her agent on a Power of Attorney, if she desires to and she is competent. If you feel she is not competent and being exploited, you may need to file a petition in court to be her guardian. This would give you power to have this man removed from her life. You may also want to contact Adult Protective Services to see if they will do a home visit. Their input and direction may be helpful.

How do I instigate an audit of my elderly mother’s money? She is being swindled by family!

Q: I believe my 88-year-old mother received a settlement from a lawsuit and my younger sibling who lives with her and is disabled is spending it. He is acquiring lots of assets. (Bridgeville, PA)

A:  If he is operating under a Power of Attorney to act for her, you can file a petition for an accounting of her money he has spent as an agent under the Power of Attorney. You could also file to become her guardian. Calling Adult Protective Services may be a good first step. They can take your information and do a home visit. If their assessment is consistent with yours, they may advise the court action I mention above which will require an attorney. (Dormont, PA)

If my father with Alzheimer’s hurts someone can my mother or I be sued?

Q: My father has Alzheimer’s Disease. He is belligerent, lost frequently. He has two guns with carry permits. My mother is in denial and I am concerned he will hurt someone. Am I liable because I knew he was not totally competent? He lives in Michigan. I live in PA. (Ross Township, PA)

A: My thought would be generally, you would not be liable. However, my concern would be that if you are aware of his propensities and that can be proven (i.e., you take him to doctors, letters to you by physicians or persons complaining of his behavior, you admitted him to a hospital, etc.) and he hurts someone, that Michigan may have a statute which extends criminal or civil liability on those with such knowledge. I would consult with a Michigan attorney and I would work to get these guns out of the house. Some states have a mechanism whereby the local sheriff upon being notified of mental incompetency, can remove guns. You may want to call the firearms department of the local sheriff or appropriate law enforcement in Michigan to see if they can advise you.

Can I be added to a POA without my consent?

Q: My sister, brother and his wife have POA over our mother. For 12 years, they would not let me see her. Now they expect me to take care of her so they can travel. They listed me as first contact without my consent or signature on her medical, dental etc. Is this legal? My sister put herself last because she plans on traveling 3 weeks out of the month. Now that our mom is 95 and needs more help. Then, I get a phone call from my brother stating that I am the first contact and all her appointments are written down along with her medications. I am going through extensive PT right now and they are all retired and my husband and I are not healthy. If they are going to do this to me can I charge them for what a 24-hour caregiver makes? (Pittsburgh, PA)

A: Under PA law, you would have to sign the “Acknowledgement” portion of the Power of Attorney document to be legally bound to serve. It is not enough just to name you as an Agent. I think if it becomes a problem, you should ask your siblings for a copy and review it with a lawyer. Also, even if you were an Agent on the POA, under PA law, you can resign being an Agent by providing written notice to all parties involved. As for earning a fee, this needs to be specified in the POA document.