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.

Mom wants to get rid of Florida realty

Q: How can my 71 year old mother get rid of a piece of land in FL.? She can’t afford it on a fixed income. She doesn’t want to use her little retirement that she has. It has to last her for a long time!

A: Questions need to be answered, is there a mortgage? are there co-owners?, is it a time share?. Is mom receiving Medicaid benefits that would be affected by her transferring property without fair consideration? If she owns it outright, she is not receiving Medicaid benefits, with no mortgage, you can sell it, let it go to Sheriff’s sale or donate it to a charity if you can find one who wants it. You should get an appraisal if you are donating it or letting it go so in the future, if called upon, you can demonstrate it was worth very little. You should probably bounce this off a Florida real estate attorney. In one of my estates, we had two lots located in a swamp in Florida that had little value and just let them go to tax sale.

WHAT DOES “DISPOSED ….DISMISSED” MEAN?

Q: What dose Disposed on 10/17/2012 as Dismissed – Diverted. I have a copy of a background check form Kentucky and I am not sure what that means? Does it effect my criminal record here in PA. (McKeesport, PA)

A: I am not exactly sure either as I practice law in PA. If I had to guess, it means the case was dismissed and the matter was diverted to a diversionary program for first time offenders which offers a lower penalty or no penalty at all. You need to contact the Kentucky attorney who represented you to confirm or call another attorney who practices in KY. You will need to do the expungement, if you are eligible in KY anyway.

Do I have a chance in fighting this DUI? I was parked and sober!

Q: I am getting charged with a DUI for a Schedule 1 controlled substance (marijuana). I was parked because I was lost and needed to use my GPS. A cop knocked on my window. My passenger had weed on her body, and he picked up the smell. I did not want to rat my friend out, so when the cop asked when I had last smoked marijuana, I answered truthfully and told him it was several hours before I started operating. He made me get out of the car, asked my name. I told him and offered him my license which was in my car. He refused to let me back in my car to retrieve it. He then conducted a field sobriety test, and failed me for my left eye not crossing in when he moved the pen towards my nose (after taking my glasses off). I was then arrested and taken for blood where I had residual THC. (Belle Vernon, PA)

A:  THC forensically found in your blood within 2 hours of driving a car is enough to meet the requirements of the DUI statute. While it seems unfair that you may have ingested marijuana two, three or four weeks prior to the blood test, and the metabolites have remained in your system, it is currently the law. In Allegheny, the laboratory sometimes tests for nanograms and if the nanograms detected are so ridiculously low, your attorney may, may, be able to convince the DA not to prosecute. You could always have your attorney file a motion to have the blood independently tested by another lab if that lab can distinguish nanograms and your results are so small that a jury may not convict you. Secondly, your statement will hurt you. If it was blurted out by you, and not a result of custodial interrogation without Miranda warnings, then you are stuck with it and it can and will be used against you as no one would normally make such an incriminating statement if not true. Lastly, lack of probable cause to stop a vehicle, or ask a citizen to step out of the vehicle, or seize the person’s blood, is always a challenge to prove, but a wonderful defense if you the right facts. I would have an attorney not only look at the blood tests but especially the facts to determine if there is a lack of probable cause to stop your vehicle and get you out of the car. Just sitting on the side of the road generally may not be sufficient probable cause to stop you. However, stopped on the berm of a busy road at 3 am, may be sufficient for the police to inquire as to your situation. There was a great case I used in the past on this probable cause issue, Commonwealth v. Dewitt (1992) , but I would need to research to see if it is still valid law. The other thing I would mention is that if this is your first offense, you may be eligible for ARD, which if you complete the program there will only be a 60 day license suspension, but more importantly, no jail time and no conviction on your record.

When should I file my parent’s Medicaid application?

Q: When should I file my parent’s Medicaid application for long term care? He should qualify as medically necessary, but only after we spend his 40k savings on private care. Should I file now or after he spends the money?

A: It is highly advisable not to do this on your own. If there is $40,000.00 in assets to spend down, you need to do this with the advice of an experienced elder law attorney. There are ways to shelter some of these assets and it will be well worth the legal fee as it will likely save a portion of your father’s money which will otherwise go to Medicaid.

 

False information to Medicaid

Q: If I told Medicaid I had rented instead of owning the property, and was approved. With today’s new health care changes, am I ok?

A: Providing false information to obtain Medicaid benefits unfortunately is a crime. Medicaid could take action to recover payments they wrongfully made based on that information, by having you charged with the crimes of theft and fraud and/or suing you in civil court. If by “today’s new health care changes” you are referring to the Affordable Care Act, it has no bearing on the fraud and overpayment issue.

 

UNDERAGE DRINKING CHARGE. BEER IN MY TRUNK. SHOULD I PLEA?

Q: Is an underage correct? So I was at a frisbee tournament in Johnstown, PA and we had to get a hotel to stay overnight. The team was separated so that 21 year olds stayed with each other and everyone under stayed together. While watching the Penguins game, one of the 21 year olds came over to our room and asked me to take them to get beer because they had drank and didn’t want to drive. So I did, they put their beer in the trunk, then an undercover cop followed us back to the hotel from the beer store. The cop stopped me and charged me with an underage and confiscated my teammates’ beer. I hadn’t had anything to drink so I didn’t think that was the correct charge. I honestly didn’t know that I couldn’t transport alcohol, but he told me that was illegal. He also said I should have let my friends drive drunk, Soooooo.

A: The statute you are charged with, 6308, applies to consumption, possession and transportation. You are probably guilty of transportation. There is a driver’s license suspension if you are found guilty. You should review the case with an attorney, to determine if you have a defense, such as an illegal stop of the vehicle. If there a probable cause defense available to you, the attorney can advise whether you should pursue or not. If the defense exists, the attorney can use it to push the police for a better deal. If no defense is available to you, or if you don’t want to pursue it, the attorney can advise if a diversionary program can be made available by the district justice so you do not end up with a conviction. A diversionary program used in Allegheny County refers the minor to a course, which if successfully completed results in a dismissal.

Neighbor is disturbing the peace

Q: I press charges against my neighbor for intentionally disturbing the peace because he’s bitter about being evicted. I live in an apartment that I can’t sleep in because he is so loud. But when I am here I call the cops whereupon he gets louder. The landlord has given him 30 days notice to evict but by law he can’t do much else. This guy is intentionally setting his alarm clock to go off after he leaves (all hours of day and night) and when he is here he invites people over to drink and party and generally be loud. He doesn’t work so he does this all the time. I’m under lease so I cannot move without breaking that contract. This has been going on for 2 months. I can’t wait 30 more days. Can I simply press charges and/or have him fined for this behavior? Civil court or claims court is too costly and time-consuming. By then he’ll be evicted. I need a quick solution to an unfair situation.

A: Yes, you can see if the police will take a complaint. You can record the noise electronically or call the police to come over when he leaves the alarm on, so they can witness the disturbance. The better evidence you have, the more likely a criminal case for harassment or disorderly conduct can be proven. If the police won’t take a complaint for Disorderly Conduct or Harassment, you can see if the DA at the local District Justice office will take a Private Complaint. Remember, you will have to face him in court and this may all be over in 60 days when he is evicted.

New wife is stealing money from my dad

Q: How can I protect my Dad’s retirement money from his new wife. I have power of attorney. She took $4,000.00 from him before the marriage. Dad is mildly impaired. He forgets to eat and cannot manage money. I took over finances, so she took him from PA to West Virginia and forced him to marry her without my knowledge. What can I do to protect his finances? She is trying to withdraw his retirement money. (McMurray, PA)

A: Unless your father is mentally unable to manage his finances, which would allow a guardian to be appointed, you little at this point. He needs to see an attorney. A trust arrangement could be established for his assets that are not IRAs or Qualfied Plan Accounts. Please note that in a guardianship proceeding, a wife is generally given higher priority to be appointed than you so you would need to prove she is not qualified to serve as guardian of his estate. You will need to get him to an attorney if he is going to be helped-assuming he wants to be helped. You need to understand what a Power of Attorney is. It is simply an authorization from your dad to do things on his behalf. If it is a “durable” power of attorney, that power continues even if he later becomes disabled. The POA does NOT, however, remove his ability to make his own choices. So, if he WANTS to give his money to his new wife, he can. There is nothing you can do about it, unless you are appointed by the court to be his guardian. You describe him as “mildly” impaired. That is not likely to meet the legal standard to show that he needs a guardian. Talk to a lawyer. You can discuss how she is manipulating him and whether there is any wrongdoing there. Also, if he creates an irrevocable trust and makes you trustee, his wife would have to convince you to release the money. His financial estate gets even more complicated by the fact, that if you and he transfer assets out of his name, and he dies leaving her with little or no money, she can challenge by filing an election against will, which if successful, she could claim one-third of certain assets of his. This is a complicated situation and he should really see a lawyer.

SHOULD I FIGHT TOXIC DUMPING CHARGES?

Q: Can I defend myself against an illegal yard waste charge when there is an accuser whom did not actually see the incident and win? A gentleman driving towards me saw me folding a tarp with a friend, followed me later &contacted city that I was dumping. We were on the road to show friend where to ride 4 wheelers on old train tracks below & saw my tarp in the truck was loose. I received a letter stating I was fined $1000 for dumping with two pictures of yard waste. I went back to the road and couldn’t find the alleged dumping area but found 10 other areas of yard & construction waste dumped. We were told we could defend ourselves at district ct but would not be provided written accusations by city and could face higher fine of $5000 if lost and pay all court costs win or lose. The city states the man has no reason to lie and we have monetary reason to. All he saw was us folding a tarp. Do we have a chance of beating this?

A: Based solely on the way you describe it here, yes, it sounds like you may have a defense. You are being prosecuted on circumstantial evidence. Circumstantial evidence is not direct evidence like actual videotape or a witness actually seeing you committing a crime. In your case, you are seen with a truck and tarp, near where toxic waste has been discarded. You can be convicted on circumstantial evidence but frankly will have a better chance with a lawyer. If you a defense or you are truly not guilty, you should have your entire situation with an attorney-the police reports, your story, any corroborating evidence. Then, based on the advice of the attorney, you can make a legal determine if you want to fight the case.