Category Archives: Elder Law

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 Medicaid put a lien on a house if there was a QCD at least 1yr. prior?

Q: Mother was taking care of grandmother. Mother then dies. Grandson steps in to take care of grandmother. Together they get a Quit Claim Deed. Grandmother gets injury to foot. The doctor advises ER visit. Grandmother kept 3 days then moved to nursing facility for “rehabilitation”. The nursing facility moves grandmother into extended stay. Medicaid takes over after 3months. Medicaid put lien on house approximately 4 months later. Quit Claim Deed was already in place but not recorded yet. (West Mifflin, PA)

A: Medicaid can look back for a period of five years at all transfers of real and personal property by a Medicaid applicant. If the transfer was done without fair consideration, for example, by gift, the transferred property can be considered part of the applicant’s estate. If so, Medicaid can exclude the applicant from funding to the extent of the value of the property. This is what sounds like happened here. It would be worth your while to have the case reviewed by an attorney versed in Medicaid regulations. There may be an exception if a disabled child was living the home or a child serving as a caretaker of the applicant lived in the home for a two-year period prior to hospitalization. In addition, there are permissible exclusions in the spend down process that you may want to be advised on.

Is it elderly abuse when your mother-in -law sleeps in her car?

Q: My mother in law won’t live in my home due to her and I not getting along. She had her own place once and then she lost it. She has no job to support herself. She stayed with us for a while and then she blew up on us. She was told to leave by my husband. Now she is parking her car in my back yard and she is staying in there. She will come into the house and use the bathroom and then leave. I do not talk to her much due to issues we have had in the past. There is also a homeless shelter that she qualifies for that will help her find work gives her a place to sleep and three meals a day. She doesn’t want to go there. I’m lost at what I can do personally without causing a major blow up between all of us. Plus, I only have a two-bed room home with two boys and me and dad. Please give us advice. (Scott Twp., PA)

A: Based on what you are saying, it seems like no one is abusing her and her predicament is self-inflicted. If she is mentally competent, she can choose to live in a car or under a bridge. If you feel that she is mentally incompetent or has serious mental health issues, you may want to call adult protective services or mental health services. They may come out and talk to her and assess her ability to care for herself.

Can a POA file eviction papers?

Q: My sister owns her home. She invited her son and his son to live with her. Since that time, she entered a nursing home. Her daughter was given POA. Her son has been selling her items out of the house and damaging the property. The house had to be listed for sale when she entered the nursing home, for financial reasons. The son was supposed to move out within one week of her transition to the facility. However, he refuses to leave and refuses to let his sister, the POA, in to the house to take care of their mother’s belongings. We understand he will have to be legally evicted. Can the POA file the eviction papers for her? And can the utilities legally be turned off since he has no means to pay the bills which are in her name. And she has no funds coming to her as it goes to the facility? (Edgewood)

A: It depends if the Power of Attorney document authorizes the daughter to do the things you mention. If it is a well-drafted General Durable Power of Attorney, it likely will have a panoply of powers and she will likely be authorized to do what you express needs to be done. The document may state something to the effect, of “handling real estate matters”, which should suffice. If she is so authorized, she needs to act promptly to prevent damage to the house or theft of property from your sister. She can take the POA to the local District Justice and file an eviction complaint for possession. She can also contact the utility companies. They will require the POA to be faxed to them but she should be able to control the utilities. You may also want to involve the police.

What options do I have?

Q: My aunt is in the hospital and she has no children, no husband. She has sister in another state that cannot come see about her due to her own medical issues. My aunt has nieces and nephews that are in the same city with her, we can’t make decisions because she has siblings. (Turtle Creek, PA)

A: It appears she needs someone to assist her. If she has no one else, and you want to help her and act in her best interests, you have two options. If she is competent, she can appoint you as her Agent under a Power of Attorney. If she is incompetent, she will not be able to sign a Power of Attorney. In that case, you can petition the court to be her Guardian. You will need an attorney to do either, and I highly suggest a consultation with one.

WONDERING IF SHOULD I GET A POWER OF ATTORNEY?

Q: MY MOTHER IS VERY ILL. RIGHT NOW I AM TRYING TO WORK ARRANGEMENTS WITH CREDITORS TO CATCH UP ON HER BILLS THAT HAVE NOT BEEN PAID. I WAS TOLD THAT I WOULD NEED TO GET A POWER OF ATTORNEY OR LIVING WILL. WHAT OPTIONS DO I HAVE TO HELP WITH HER AFFAIRS BUT NOT TAKE THE FINANCIAL BURDEN ON WHEN SHE PASSES?

A: If your mother is still competent, she can sign a Power of Attorney. My suggestion is to have her consult with an attorney to ensure that the Power of Attorney drafted will give you the specific powers that you need. By becoming her agent on a POA, you do not assume any financial responsibility for her debts as long as you do not exceed or abuse the powers granted to you.

A sibling wants my dad locked away in a nursing home!

Q: It is obvious that my father wants to go home. It is obvious that he would not have granted my sister power of attorney if he’d known she would do this when he was helpless. He wasn’t helpless about a week ago, but he fell out of bed reaching for something and scraped his scalp. My sister pounced on the chance to call 911 and have him taken against his will to be checked. He was admitted for observation simply because he’s very old. He resisted and was injected with Haldol for days. My sister consented to it for him despite reams of information I’ve sent her about its lethality, or perhaps because of it. The hospital made him a drooling wreck and said we could not care for him at home with his wife. In the nursing home, they use heavy doses if Ativan. At a care conference at his bedside, the staff and my sister all agreed that he could not be cared for except in a nursing home. Of course, he can’t, he’s a bag of Aricept and Ativan. If they keep giving him Ativan, he’ll become an addict. If they keep giving him Aricept, he’ll stay crazy. He’s been deemed incapable of making good decisions, so he can no longer get himself out of there. (Ben Avon, PA)

A: This is a difficult situation. I think his competency is the key. If he is competent, he can sign himself out, override the POA or revoke the POA in writing. If he is incompetent, then your only choice, if you cannot work this out with your sister, would be to file a petition to be his guardian. An order of court appointing you as plenary guardian would nullify the POA. If you can get a copy of the POA, I would review it with an elder law attorney who handles guardianship law. He or she can advise you on what would be involved in seeking to be his guardian.

My Mother is aging and health is declining. I need some legal advice on few options?

Q: Currently I am the primary care person for my mother. She started to decline last year after she had congestive heart failure. She is at home and my brothers and I cover time in-between. There are times she goes without coverage for a few hours. She is starting to have a fear of being alone. We are wanting to possibly work with a lawyer to help guide us through the process and find a solution that will last without bankrupting her in two years. (Pittsburgh, PA)

A:  It is good that you recognize the need for an attorney. No one can answer exactly what legal services your mother needs without knowing more information, including the extent of her assets and how they are titled, her health, her health insurance coverage, her long- term disability coverage if any and her competency, it will likely be necessary to have the attorney draft a General Durable Power of Attorney, Last Will and Testament and a Living Will. Advice on the potential of Medicaid funding may also be helpful.

Is there a POA that will not allow real estate transfers?

Q: My older sister wants to be POA over my father to handle his finances, bank accounts, insurance, etc. But, my father doesn’t want to give her authority to sell/transfer/liquidate his real estate property. He would like to have a will done to include his three children receive shares of the real estate property. Please advise on what steps to take to insure his wishes are carried out since he is 84 years old and my mother just passed away on 5/25/17.

A: The “powers” portion of a General Durable Power of Attorney can be tailored to fit a particular need. Your father should make an appointment with an attorney and have the attorney draft a POA which removes the specific powers which authorize an agent to transfer real estate. Limiting language can be added to the effect that he does not authorize his agent to sell, transfer or liquidate his real estate.

What kind of lawyer do I hire for an emergency guardianship?

Q: My sister who has been POA since 2015 has set in place a Personal Care Contract as she is the primary care giver to deplete my father’s assets to seek Medicaid in the future. He has a house being sold in 45 days. He won’t be eligible 5 years and he is at stage 6 of Alzheimer’s. She has breached her fiduciary duties in many areas, depositing his money in her personal account, has been deceptive in not posting promissory notes payable to me. I am not on the PCC. We all just learned that this lifetime contract is payable in a lump sum at the closing of the house. She said she is taking half which equated to $180,000. She has abused her role as POA. She has breached her fiduciary duties and is using this PCC to her own benefit as she is currently on the market for a house. A top-rated Medicaid attorney has drafted this PCC but my sister is not being fair as her greed for money has overstepped her bounds of looking for the best interest of my father. What are my rights? (Pittsburgh, PA)

A: There are several red flags here, at least the way you describe them. Depositing a principal’s money in her own account while acting as an agent in a fiduciary capacity, is a big problem, if true. If your suspicions are accurate, one of your remedies would be to hire an attorney to file a Petition for Accounting which would result in her having to file an account of all his funds spent by her. If warranted, you could simultaneously file to be her Guardian. Without more details, I the only advice I can give is consult with an elder care attorney versed in Medicaid regulations. It may be well worth the consultation fee.