What is the widower entitled to if the spouse goes on Medicaid (PA)?

Q: My grandfather is unresponsive in a long term rehab center. He is 65 (December Birthday), has Medicare and Bankers Life/Colonial Penn Plan N. He is about to run out of covered days. The thought was to put him on Medicaid, but we don’t know what they can take (home, savings, property, cars, etc.), what the widower is entitled to keep, and so on. We also don’t know how it will work with Social Security – will she be able to keep his monthly check? Together last year they made a total of a little less than $40,000. Everything they own, their house (no mortgage), 3 cars, and all bank accounts are in both their names. The other problem is that my grandmother doesn’t have power of attorney, and since my grandfather is unresponsive, that isn’t possible (to my knowledge). What about guardianship? (Forest Hills, PA)

A: You really need to find an elder lawyer versed in Medicaid regulations to guide you through your situation. Generally, the state takes a snap shot of the assets a married couple owns at the time of eligibility for Medicaid. It doesn’t matter if the accounts are titled jointly or in either spouse’s name. There are certain assets that will be excluded such as the primary residence, one car, certain life insurance and qualified retirement accounts of the community spouse (the spouse not in the hospital). This snapshot value is added together — the community spouse gets to keep at a certain amount of assets pursuant to Medicaid’s convoluted formula. Sometimes, you can increase the maximum amount that can be retained if. Again, you really need a thorough assessment of the situation. If grandfather is not competent to sign a Power of Attorney, you may need to have an attorney file for a guardianship over him.

How to revoke a Power of Attorney

Q: How can I revoke my power of attorney? What if my agent engages in unauthorized acts after the power of attorney has been revoked or terminated?

A: Normally, POAs are not filed with the court. Also, normally, a POA has language that states in can be revoked in writing by the Principal. Therefore, you should be able to revoke this, by drafting a Revocation of POA. Once you do this you should have the Revocation delivered to every institution which may be relying on it, such as banks and hospitals. If your agent has acted contrary to your interest after having knowledge of the Revocation, he or she, could be subject to criminal charges or a civil suit, especially if he or she has stolen or converted money or assets. You may need a lawyer to assist you.

Can Disorderly Conduct charges be mailed?

 

Q: Can a Pennsylvania police officer send out a disorderly conduct citation without giving you something at the time of the incident? The police were called for “shots fired” while we were out shooting guns. They couldn’t get us for anything like drugs or beer so they said we’d get disorderly conduct charges in the mail. We never received anything that day. Can they send the charges to us?

A: Yes, citations and summons for court hearings can be mailed. I would make sure to check your mail. If you are charged with a summary offense, you will receive a Notice of Summary Trial. If you are charged with a misdemeanor or felony, you will receive a Notice of Preliminary Hearing, Notice of Preliminary Arraignment and Notice of Fingerprinting. I would take the paperwork to an attorney once you receive them. The way you describe this, it might even be a stretch to convict you of a municipal ordinance for discharging guns unless you admitted to it.

Can Medicaid make a claim against an estate if the estate has been closed?

Q: The estate of my mother, who passed away, was opened in 2012 and closed in 2014. The estate was closed Sept 2014 and Medicaid made an estate recovery claim in Feb 2015.

A: Much more information is needed regarding the type of Medicaid received by your mother and much more information on her estate. For example, was her estate closed formally, by an Account filed with the court? If it was, was the PA Department of Public Welfare put on notice of the Audit date and presentation of the Account to a judge for signing pursuant to the PA Probate Estates and Fiduciary Code? Generally, Medicaid can recover against the property of a deceased person through the PA Department of Public Welfare Estate Recovery Program. However, regulations and rules dictate if this can be done and to what extent. In addition, if the estate followed certain procedures, estate assets may be protected. You need to review this entire situation with an estate elder law attorney who is versed in Medicaid law.

WAS SERVED WITH CIVIL COMPLAINT, WHAT DO I DO?

Q: Auctioneer fails to deliver auction of property. Now is suing me for thousands. What to do?I have a property that is hard to sell, so I contracted with a real estate auctioneer. The contract was that the auctioneer would market the property online, and in print advertisements, and also conduct a formal auction with bidders. The auctioneer guaranteed me a sale of the property from the auction, and bidders for the auction in written communications. The contract was $5000 for marketing which I paid up front, and an additional $5000 after the auction for the auction. There were no provisions in the written contract about responsibility on either the auctioneer, or the seller’s end if the property did not sell, or if there were no bidders. On auction day, no bidders showed up, and the auctioneer did not commence the auction. The auctioneer left 10 minutes after the auction was to begin, and stated that he would follow up with me. The auctioneer never followed up with me. One week later the auctioneer sent me a demand letter for the additional $5000 for the auction even though there were no bidders for the auction, and no auction was actually conducted as planned. I sent a letter back to this auctioneer stating that I think no further payment is warranted since he did not conduct the auction, left early, and did not deliver as promised in writing to “Sell My Property”, and “Bring Many Bidders To The Auction”. One week letter I get a complaint from the county court of common pleas that the the auctioneer is suing me for $5000, and $2500 for additional damages. In the written contract the auctioneer guaranteed me a diligent and effective auction, but he clearly did not deliver this because there were no bidders interested in participating, and he never commenced the auction as scheduled and planned. How can I proceed to defend this?

A:  You need a lawyer. You have 20 days to answer the complaint. Whether you have a defense can probably be determined by reading and interpreting the contract, which a lawyer can do for you. YOU MUST FIND A LAWYER IMMEDIATELY to file a written answer to this complaint. If you don’t answer the complaint, you may be subject to a default judgment and lose important rights or property.

Can they issue an arrest warrant?

Q: I just received a phone call from a woman who stated she worked for a law firm handling a payday loan case from Plain Green Loans. The loan was “supposedly” given to me on Nov 2, 2011. She said I owed $993. I have not received any physical verification of this loan nor do I have any knowledge of this. She threatened me with an arrest warrant? I’ve had people call and threaten me like this before for companies I’ve never heard of and nothing has happened. Should I be worried?

A: Only a court can issue an arrest warrant and it is served by a constable, deputy sheriff or police officer. It sounds like creditor harassment. If you have nothing to do with this, and you believe this is a case of mistaken identity, as a first option, you may want to file a police report or call the consumer protection division of the Office of the Attorney General of Pennsylvania. Once you do that you should talk to a civil lawyer who deals in creditor harassment. If you may owe this debt, as a short term fix you may just want to change your phone number.

Transfers of Assets Regarding Nursing Homes

Q: I am purchasing land from my mom so that she can have some cash to spend for living expenses. My mom is 78 and in fairly good health but if she needs to go into a nursing home within the five year “look back?” After the transaction can the nursing home take back that property if it was not a gift?

A: GENERALLY, if the transfer is for fair consideration, it should not exclude her from Medicaid eligibility. This means fair market value as documented or appraised. If you do this, you need to document everything henceforth, so if called upon down the road in the Medicaid application process, you have your proof.

Can I be paid for my POA services?

Q: I am a power of attorney for my wife’s Aunt. I do everything from pay bills for nursing home, do income tax, get health ins.etc. I take care of her house, clean, sprinklers on and off, buy things she needs, check medical bills, and a whole lot more. My question is, how much can I charge her monthly. I drive 45 minutes, 2 days a week to make sure house is ok. Is $300 a month ok!, or, is it too much or not enough. Thank you for your input! (West Newton, PA)

A: You can charge a fee for your services as an Agent on the Power of Attorney (POA) if authorized by the language contained in the POA. If the POA does not mention a specific dollar amount, it probably says a “reasonable fee”. If so, the fee must be reasonable compared to the normal fee charged by elderly caretakers. You may want to investigate. It may be in the $20 to $30 per hour range. Beware however, if she ever needs to apply for Medicaid in the near future, these payments could be considered a transfer without fair consideration and could disqualify her from receiving Medicaid benefits. If you fell she may need Medicaid in the future, you need to meet with an Elder Law attorney who is versed in Medicaid law, to review the entire situation.

If my mother is in a memory care unit is she competent to give a power of attorney?

Q: Mother’s memory has deteriorated to the point where she must reside in an Alzheimer’s care unit. Does she still have the legal capacity to grant a power of attorney or to consent to a formal guardianship? Who determines competency if there is a dispute among siblings?

A: A person must be mentally competent to sign a Power of Attorney or to consent to any document or in any legal proceeding. If she is in an Alzheimer’s unit, one would think her competency is compromised. I think you need to consult with her doctor as to the level of her competency. If she has basic competency, even with an Alzheimer’s diagnosis, she may be able to sing a Power of Attorney.

Will I go to jail for being arrested on bond?

Q: Will I get arrested when I report to pre trial services because I got a possession charge due to a heroin overdose? I was released with condition of reporting to pre trial services from Allegheny county jail on a conspiracy charge. I am not on probation. What if I sign into rehab for help instead of reporting to pre trial services but call & let them know where I am?

A:  You need to take care of yourself as a priority. If you truly feel you are at risk if not entering a rehabilitation facility, enter the facility. It is best to be honest with pretrial services whether you enter a facility or not. Pretrial services may only recommend a more stringent bond condition such as screening and intense drug and alcohol counseling. On the other hand they could revoke your bond and take you before a judge. You may do better with a lawyer who you can explain all of the facts. I really cannot give any certain answer without knowing more.