Category Archives: Elder Law

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.

Can you explain on how you can make exempt gifts to relatives for Medicaid purposes?

Q: How can my friend gift away money to his nieces and nephews and avoid a penalty from Medicaid? (Pittsburgh, PA)

A: No one can answer this question without knowing all the facts surrounding the potential applicant including but not limited to age health, assets and how they are titled, health insurance resources, etc. You need to consult with an attorney versed in Medicaid regulations. I think you may be confusing “unlimited gifts” with the Federal Gift tax exemption, which has nothing to do with Medicaid. The basic idea is that all transfers for less than fair market consideration (deal and gifts to relatives) within the five-year period prior to a Medicaid application for benefits, and render the applicant ineligible for Medicaid benefits to the extent of the value of assets transferred. An attorney experienced with regulations of Pennsylvania’s Department of Human Service’s administration of the Federal Medicaid program, can guide you and advise if any and what exemptions may be available to your applicant.

Can I review the actions my aunt is taking on behalf of my father under a Power of Attorney?

Q: My dad has Alzheimer’s Disease. My aunt is his Power of Attorney and has been making some questionable financial decisions on his behalf. I saw the Power of Attorney a few years ago, and I don’t remember much detail about it, but I do remember it expires this year. When I asked my aunt about the Power of Attorney and her actions being taken under it, she says she has an attorney and cannot speak to me about it. As my dad’s son, do I have a right to see this Power of Attorney? Can I question my aunt’s actions and hold her responsible for mismanaging my dad’s estate? Can I remove her as Power of Attorney and have her held responsible for her actions while my dad is still alive?

A:  Your aunt has no legal obligation whatsoever to show you the power of attorney or give an accounting to you, unless she so chooses. People seem inherently suspicious of Agents under powers of attorneys and most often for no legitimate reason. If you get nowhere with her or her attorney by making an informal request, and, you still are convinced there is questionable activity, you will need to hire a lawyer. If the lawyer’s informal inquiries are denied, he or she can file a petition for accounting and force your aunt to produce an accounting of all her expenditures on behalf of your father. You can then review the accounting with your lawyer. If you still think there are questionable issues, you can start procedural record producing requests and ultimately drag her and her attorney into court on a Petition for Accounting for a no-rules barred legal cage match.

How do we get the property back?

Q: My aunt oversees my grandmother’s finances and property. We recently discovered a transfer of one of her properties, which has a value of over 1/2 million dollars, has been transferred into my aunt’s name for no price. She admitted to putting in her name but my grandmother hasn’t said anything. My grandmother has five other children and my aunt did this behind my family’s back. Even if my grandmother granted this, which I don’t think she did, she no longer has a sound mind and has a problem with her memory. My dad plans on talking to my grandma but at this point is there any way to resolve this? (Pittsburgh, PA)

A:  These family situations are difficult. It is always possible your grandmother wanted your aunt to have the property. If you want to examine the transfer, hire a lawyer to look at the deed and the entire situation to determine if there are any red flags surrounding the transfer. Is your aunt operating under a valid Power of Attorney? Is the deed legally sufficient? You never know what you may find out. If the deed was prepared by an attorney he or she would have or should have examined your grandmother for competency prior to signing the deed. If you have an opinion from her doctor which states that at the time she signed the deed she would have been incompetent you have a stronger case. If your case is based on speculation, gut instinct, and suspicion, you will have an uphill battle. If you find that there are legal grounds to challenge the deed, an attorney can file a petition to rescind the deed or a quiet title action in court.

I am a caregiver. Can they audio record me?

Q: I have been a caregiver for this family for two years and recently found out they have cameras in some if not all bathrooms and are recording our conversations. They have repeated things I’ve said and have commented on things I have done. Can I sue for violation of privacy? (Greenfield, PA)

A: Pennsylvania laws on wiretapping make it a crime to audio record another person without that person’s consent. Video recording with visible cameras is not a crime in Pennsylvania. It is not unusual for caretakers, from daycare to elder caretakers, to be subject to video recording. Normally, the cameras are visible and known or the caretakers have been informed of them. The two things that concern me are that you say you just found out after two years and the cameras are in the bathroom. You may have an invasion of privacy issue and therefore a consultation with a lawyer who handles such cases may be advisable. If the cameras in the bathrooms are filming private matters and you have proof that you were audio recorded without your knowledge, you may have a criminal case in which case you would call the police as a first step.

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.