Category Archives: Uncategorized

If I receive portion of husbands 401k, will I lose disability?

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.

Do I have to pay mom’s money back to a nursing home?

Q:  My mom paid off my car and then went into the nursing home. The deal was, a few years later would I have to pay that amount to the nursing home. My mom is getting very forgetful if she gave me money to pay off some bills I have. If I have to have in home help or have her go to a nursing home. Would that penalize her, or would I have to come up with that money? I am on her checking account and I have durable power of attorney. Thank you.

A: I am a little confused and don’t have all the facts that I need. You really need to ask an elder law attorney who can look at the entire situation. Generally, transfers of a person’s money to others, without consideration (no payment in exchange) within 5 years of Medicaid eligibility, can cause that person to be ineligible for Medicaid in the amount of the transfers. It is not the nursing home that is the problem, it is if and when your mother needs to apply for Medicaid. It sounds like you and your mother could really benefit from legal advice, but the attorney has to know the entire situation.

Will I get arrested for DUI?

 

Q: If I didn’t get cited or tested for being drunk, will I still get a DUI in the mail? See details below. I drove home (stupidly) from the bar the other night. After a mile, I realized I needed to pull over. Between being tired and having a few, I really just wanted to close my eyes for a minute in a parking lot. Next thing I know security is there and calls the state cops on me. The cops came and they never got out of their car. They asked me to get out and talk to them. I remember the cop taking my information, but I never signed anything, received a paper or even got tested in any way. No breathalyzer, no sobriety test. I did admit to having been drinking because I knew he could smell it on me. I told him where I had been. He asked if I did drugs. I said never in my life, which is true. Those are basically some of the only questions he asked me. He let me call my husband to pick me up. (North Huntington, PA)

A: Not knowing exactly what the police will say that they observed as to your condition, and going on your recollection, which is a bit vague, I certainly cannot promise you will be not be arrested. The fact that the police didn’t get out of the car to give you field sobriety tests, nor take you in for testing, leads me, if I had to guess, that you will not be charged with DUI. All you can do at this point is check your mail as if you are arrested, it will likely be by summons (in the mail). Whatever you do, do not voluntarily go to the police as some people do and make a statement.

I sold Xanax pills in school, what should I do?

Q: What should I say when question about selling Xanax (“benzos”) pills in school? I sold some in school and parents now know as does my mom. They were her pills and I took and sold about 15 to people I know in school. No authority figure at my school knows yet but I am afraid someone is going to tell. If I get questioned by my principal and police, what should I say? Nobody from school has caught me yet and I have a good track record regarding behavior.

A: It seems that no authority figure knew about this at least until now, with you posting it on the internet. Unfortunately, what you did was a serious crime, enough to have a juvenile delinquency petition filed against you which will bring you into juvenile court. You may also be expelled or suspended from school depending on how your school code is written. As to whether to confess or not to police and school authorities, generally the answer is no. However, have mom get you an experienced criminal defense attorney with juvenile court expertise who can give you real specific guidance on this tricky issue. If you have a defense, the attorney may advise you not to speak with anyone. If you have no defense, he may advise you to cooperate in order to mitigate your sentence. Generally, juvenile court encourages children to be honest as to their criminal misadventures as supposed to denying what happened and taking the 5th amendment as many adult criminals do. An attorney can help you balance all of these considerations after a thorough review of the facts. At worst, you want to obtain a consent decree so you have no criminal record from this. You and your mom need some guidance here. Whatever you do, do not get arrested again. Keep away from drugs and remove yourself from being around others who possess them.

 

Should I cash in my insurance policy to get Medicaid?

Q: If I have a whole life insurance policy. Do I have to cash it in to qualify for MA or do they put a lien on proceeds at my death? I have $300,000 whole life with $25,000 cash value. Do I have to cash in to access the cash value or would they put a lien on the proceeds at my death, in order to qualify for medical assistance to pay for nursing home care?

A: Your question can only be answered with an experienced elder law attorney reviewing all of the facts. Generally, if you don’t want to lose the insurance policy, many insurance policies allow you to “borrow down” the cash value of the policy. Then you can spend those funds in an approved way that will allow you to qualify for benefits. This way, you can retain the benefit of the insurance coverage for your beneficiaries when you pass. You need an experienced elder law attorney well versed in Medicaid regulations to look at your situation and you want to have the insurance company carefully explain your options.

Can someone with Alzheimer’ diseases sign a quit claim deed?

Q:  Am a caregiver for an Alzheimer’s patient, I haven’t been paid for a year due to family of the patient mishandling her finances. No one wants to care for her anymore now that all her funds are gone. I would like to know how can I protect myself so I don’t get cheated in the end, and be compensated for the job I am doing. The only asset she has is her house and I would like to know if she can sign a deed or at least put my name on the title so I can have some say and not get kicked to the curb after all my hard work.

A: Having Alzheimer’s doesn’t necessarily mean she is incompetent to sign a deed. You should ask her doctor if she is. If she is competent or is not competent, you should proceed with caution as there may be an appearance that you are taking advantage of her. If you can afford a lawyer, he or she may be able to determine if this is possible. My feeling is that it will only work if she is competent and she wants to do this. At a minimum, you should get a caretaker contract from the women or her next of kin for your services so you can be paid in the future or reimbursed from the estate.

Threats from next door neighbor-she is 76

Q: We have a 76 year old woman living next door and she is in the habit of taking in homeless people. Last summer some of her” tenants” were seen by my wife and myself using her back yard as a urinal and a portion of it as what we can only describe as a defecation pit. My wife talked to her about this but it went on until I called the city about it. They came out and spoke to her but it still went on. Now she found out that I was the one who called and tonight she came over making threats at our front door beating and banging on it, in a drunken rage, with foul language, then went around back and did the same. We called 911 and the police said maybe I should get a court order so if it occurs again I can press charges. I know she is up in age but some of her tenants shoot guns in the woods and they have been doing drugs on her property also (we smell marijuana smoke and other weird smells). Do you think an anti harassment order would help?

A:  Bad neighbors can be big problems. She is free to do things on her property that are not illegal. If you believe she is violating state laws or zoning ordinances, call the police or the municipality and let them investigate. Keep calling until they do their job. As far as her coming on your property, she can do so for legitimate purposes. If she is not welcome on your property any more, tell her so or provide written notice to her that neither she nor her crew are welcome on your property. If she continues to get drunk and come back over to your house (which often happens with people like this) she will be deemed a trespasser based on your prior notice. Under the law, based on the prior warning, she can be arrested as a trespasser and you can have law enforcement cite her or arrest her for trespassing. As far as a civil order you can probably get one if you continue to establish a record of bad behavior and get some good photos-like the defecation pit and sound recordings of the discharge of guns. However, you would need to pay a lawyer to do this and a civil order will not have the bite that a criminal charge would. Plus, you don’t have to pay the police, or at least should not have to. Perhaps she has lost her faculties due to natural aging or drug and alcohol abuse and a social services agency may help by doing a wellness visit. If they visited her and became concerned, they too could make referrals to the appropriate agency including the police or psychiatric intervention teams. Good luck.

I am POA for my dad. Do I have to produce financial records for a VA social worker?

Q:  I have a Durable Power of Attorney signed over by my father with Alzheimer, about 3 years ago. He already has a social worker at the VA where he goes to the doctor. They have all of our POA/Healthcare Proxy forms on record. Suddenly this other social worked came to my home (dad lives with me) and is now demanding to see his finances. Do I have to comply? I already spent plenty of time documenting all of this and there are no problems at home, dad is content. I am an only child and mom passed away so there aren’t even other family members who would have a say in this. I don’t think I should have to jump through hoops every time some random stranger shows up and wants his curiosity satisfied. What authority do these people have, anyway?

A:  Hi, The answer to your question is yes. However, you have the right to respectfully reply, “my father has a right to privacy in his records, so no I will not unless or until you obtain a court order requiring me to do so”. However, how much more do you want the problem to grow? They will get suspicious and possibly get a court order so be prepared to face more requests. If you have nothing to hide you may want to comply.

Living Will versus my oldest sibling?

Q: My father has a Living Will that says do not resuscitate but Dr. Says it is up to the oldest child, my sibling. Who is correct?

A: A valid legal living will with an appointed and designated agent/surrogate who is ready and willing to act, should be honored by a hospital or medical provider. Your father’s Living Will needs to be in full compliance with Pennsylvania law. If you are the designated agent or surrogate on such a legal Living Will, the end of life decision should be made by you as directed in the Living Will, regardless of what the doctor or hospital says. I have had certain hospitals that inform next of kin that they are not obligated to honor a Living Will, and I really don’t understand it. The Living Will I use in my practice is taken directly out of the Pennsylvania Probate, Estate and Fiduciary statute. It seems that some medical providers will only honor a Living Will or DNR code document drafted or endorsed by their lawyer, for whatever reason. You should have a meeting with the doctor or the social worker, tell them your position and ask them to explain their reason. If there is no resolution, change doctors. If that is not possible, hire a lawyer to contact the doctor or staff. If there is still no resolution, the lawyer can file a petition in which it is requested that the doctor or hospital appear in court and tell the judge why they do not conform to Pennsylvania law.