Q: My son had an accident he was at fault for and died. He only had liability insurance. A lawyer for the occupants of vehicle he hit want to be administrator of his estate. He has no estate. The petition was sent to me as next of kin. My son did not reside with me. At the time of the accident he was living in his own apartment alone. Do I need a lawyer? Why? Should I petition to become administrator?
A: PA law will qualify only certain types of people to be Administrator of an estate. It follows the intestate statute and therefore next of kin is favored. However, it does allow a creditor, someone who is owed money, to qualify. I would need to know more, but the lawyer may qualify as his client has a personal injury claim against your son and now an estate needs to be open to have a legal party to sue. If you want to be administrator, you could contest the petition of the lawyer, and file your own in which you would request to be the Administrator. The lawyer would probably prefer that. The question is, do you want to be the Administrator? Is it worth the time and expense? What you are describing sounds like it could be an insolvent estate? Therefore, you should take all the papers to an attorney. Before you do, investigate what assets your son had. If your son had very little assets, it may not be worth it to you to be Administrator. There are costs involved in filing to open an estate, not to mention lawyer fees.
Q: We have my mom in a board and care home. She has Alzheimer’s Disease. We’d like to supplement the care she gets by bringing in a companion a few hours a week. The companies that provide this service are expensive ($20/hr), and require a minimum hourly visit (3-4hrs). So, we’d like to pay a private person under the table, to come in and befriend our mom, take her on outings, etc. What are our legal risks? Example: if the companion falls at the Board and Care home? If mom injures the companion via the Alzheimer’s aggressive behavior mom has at times? (New Castle, PA)
A: Talk to a lawyer about preparing a Release of Liability for the caretaker to sign. There are other issues you may need to address here with a lawyer such as the potential need for Medicaid funding in the future. It may be better in the long run to have the paid caretaker under contract with proof of all payments made so in the event Medicaid is in the future, a challenge the spending of mom’s funds for the caretaker will be documented and not be an issue for eligibility.
Q: I have a domestic simple assault from Arnold, PA. I live in Oil City, PA now. Can get a handgun if this happened in 1995? I have not had any arrest or anything sense and never been in any other trouble in my life all but that one time. I want to get a hand gun for hunting but need to get past the background check and this simple assault is kind of holding me up. (Oil City, PA)
A: If you were convicted, unless your simple assault was a mutual combat M3, you cannot get a license to carry nor can you own or possess guns. I would check to see if you were actually convicted by obtaining your criminal history from the PA State Police. If you were not convicted, the arrest record will be on file and may prevent a permit being issued to you or a gun being sold to you. If you were not convicted, you can expunge the arrest record and should have no problem obtaining a carry permit.
Q: Grandmother was paying $14k/month to private homecare agency so I (grandson) moved in to take over her care before she ran out of savings. She has paid me $2,400/month for the same care, and I have reported the money on my taxes as income. She now needs to go to a nursing home, but will only be able to pay out of pocket for a few months. Over the 18 months I’ve cared for her, she has paid me a total of about $40k. I know that if she had just been giving me her money, we would not be eligible for Medicaid due to the transfer penalty. Is the transfer penalty still a risk given that she was paying me for a service that would have otherwise cost her much more? (Pittsburgh, PA)
A: Very possibly. Be careful. Caretaker payments to family members without proper documentation and receipts can raise red flags with Medicaid and yes can in fact be viewed as a transfer without consideration within five years of Medicaid eligibility. The fact that you reported the income on your tax return is important. You would be safer if you have a caretaker contract signed by grandmother in place that is the type of document approved by Medicaid. You should consult with an elder law or estate attorney before you do anything .
Q: Charged with sex offense. My “lawyer” is threatening to withdraw his appearance 2 months before trial. I hired my lawyer because I was accused of some serious child molestation charges which could put me in jail. I was never arrested and only knew about the official charges from my lawyer. I received ROR bonded at arraignment he showed up a preliminary hearing and told me he was unprepared and to waive downtown only to charge me $750. He agreed to take the case on payment plan but now wants $5000 this week and $2500 ten days before trial (which for me is impossible). Now he is threatening to withdraw in 3 days. He already entered his appearance only because his wife emailed me and told me I didn’t need a lawyer for my formal arraignment and the judge threatened to withdraw my bond. Now my question is what can I do as far as hiring a court appointed, and how much of a disadvantage am i know? What can i do? (Moon Twp., PA)
A: It sounds like you need a new lawyer. Whatever you do, do not wait until the last minute. Judge’s are lenient in granting continuances when defendants obtain a new lawyer. If you cannot afford private counsel, get documentation of your income together and apply for a lawyer with the PD in room 400 of the County Office Building. You can talk to your PD, have him represent you and at the same time raise money for private counsel if things are not progressing with the PD as you like the closer you get to trial.
CRIMINAL LAW, COURT APPOINTED LAWYER, PUBLIC DEFENDER
Q: What are the odds that a homeless teen that has been kicked out of their home will be able to legally emancipate them self? And if there is a good chance it will happen, is there a way for them to get financial aid of some sort to pay for a lawyer? Homeless people don’t have much money.
A: I am assuming you are under age 18? Proving emancipation is not easy, as you have to convince a judge you can support yourself which very few teenagers can do, at least in the eyes of a judge. The judge may say to you, if you are so self sufficient, why do you need someone else to pay for a lawyer. On the other hand, if you are truly homeless and want support, and there are valid reasons that you cannot return home other than you just don’t like it, you may be able to get Children Youth and Families to file a dependency action for you. You can call the courts or Kids Voice in Pittsburgh for help. (Pittsburgh, PA)
Q: I am in a PA Member-Managed LLC and I made 60% of initial contribution. Can I withdraw or force dissolution? Do I have management control? There is NO operating agreement. I want to get out of the LLC because the other two members refuse to infuse capital. I have another business opportunity I would like to get involved in. Thus, I want to know if I have management control over the LLC so that I can use this LLC to work with the other opportunity without the other members’ consent. If not, can I withdraw from the LLC or otherwise cause the dissolution, so that I may pursue this other interest?
A: Under Pennsylvania’s law on limited liability companies (see 15 Pa.C.S.A. Section 8353,), a limited liability company can be dissolved by the express will of any member when no definite term or particular undertaking is specified. In settling the LLC’s accounts, it must first pay its creditors, then to members in satisfaction of liabilities for distributions under Section s8932 or 8933, then to the members in respect of their contributions to capital, and finally to each member’s share of the profits and other compensation by way of income on their contributions. (see 15 Pa.C.S.A. Section 8974). So without an operating agreement governing your situation, I would suggest you dissolve the LLC and take back your 60% contribution (assuming the funds are still there). It would be best if you engage a business attorney to go over your options and the facts before dissolving the LLC.
Q: Is there a difference in Pennsylvania between “joint tenants” and “joint tenants with right of survivorship”? I am trying to determine how my mother’s property is titled and I keep seeing of these terms for the same property.
A: I do believe that the correct legal terminology is “joint tenants with right of survivorship.” However, I see the wording “joint tenants” used commonly to mean the same thing as an abbreviated version. I am unaware of any different legal meaning. For a more specific answer, I can offer the following. In PA there are three general types of common (joint) ownership of real estate. First, there is tenants-in-common, which is like a plain general partnership and the heirs of any given member of the tenancy, would inherit the other person’s share upon their death. Second, there is tenants-by-the-entireties, how property of spouses is held, where each spouse owns an undivided half of the real property acquired by the spouses and, upon the death of one spouse, the other spouse owns 100% of the property by operation of law. The last, joint-tenants with the right of survivorship, is similar to tenants by the entireties in that the surviving tenant gets the share of a deceased tenant. However, unlike entireties property, unmarried joint tenant’s shares are not protected from their individual creditors.
Q: My spouse has high med bills and has illness which will continue to worsen. He has no long term coverage. How do I avoid going broke paying his medical bills? How do you qualify for Medicaid? What is amount which you can gift to children? The house is going to me via will but I am not on deed or title, only on the mortgage. Would quit claim deed be solution? (Jefferson Hills, PA)
A: There is no quick and easy solution to this and you can create worse problem by starting to give things away. There is no simple answer here. Please do not worsen the problem by transferring assets on your own without the assistance of an elder law attorney. If the ill person is not yet 62 years of age, he or she will not qualify for Medicare but will qualify for insurance regardless of pre existing conditions due to the affordable care act. Check out www.Healthcare.gov. If the ill person is 62 or older he or she can apply for Medicare and should do so with the assistance of an elder law attorney to determine the best way to preserve the person’s assets without doing anything that would jeopardize their Medicaid eligibility, when they do apply for Medicaid in the future. Generally, to qualify for Medicaid a person must have almost no money or assets. Not sure what is going on with your house, specifically why it is not titled to husband and wife. With Medicaid, if the husband and wife are both on the deed, the house may qualify under the homestead exclusion and would be protected. You need to discuss whether transferring this house now is a good idea and all matters with an experienced estate or elder law attorney.
Q: I have been married since 1993. I have been on disability since 2003. Our divorce was filed in 2003 but has not been finalized. Can I get a portion of his 401k and keep my disability payments. (Swisshelm Park, PA)
A: It depends what type of disability you are on. Some benefits such as Supplemental Security Income (SSI) and Medicaid are “needs based” which means that the there are specific income and asset limits a person must meet to be eligible. Social Security Disability Insurance (SSDI) and Medicare are based on age and/or disability status, are not needs based, and do not have the same income assets limitation in order for one to be eligible. You need to determine which one you are on and would benefit from a consultation with an elder law attorney. If you are certain you are on SSDI, you should be fine. If you are on SSI, an elder law attorney may be able to limit the impact your receiving the 401k will have by advising you how to shelter some of the 401k money and keep the benefits. It would be worth the consultation.