Can nursing facility take your parents savings and home?

Q: My mother has Alzheimer’s and we are looking into placing her into an assisted living facility which deals with her specific needs. If me and my siblings self pay with no charge to her insurance, is the facility entitled to their savings account and or home? (Munhall, PA)

A: I believe your question is whether or not Medicaid potentially has an interest in your parent’s bank accounts or home. The assisted living facility does not care who pays the bill, as long as it is paid. If the bill cannot be paid due to the exhaustion of funds, the facility will advise the next of kin to apply for Medicaid. Once the Medicaid application begins, Medicaid will require the next of kin to report all of mother’s assets. In simple terms, since Medicaid is potentially paying for your mother’s nursing care for the remainder of her life, they expect a contribution of the value of her personal assets. Medicaid looks at all transfer of an applicant’s assets within the five years preceding the application done for less than fair compensation. This normally include gifts to family. Any asset so gifted, can penalize her from Medicaid coverage to the extent of the value of the asset transferred. Since you can afford private pay now, you have some time to prepare for the future when mother’s costs may grow significantly, and you therefore should meet with an attorney.

Daughter charged with public drunkenness and possession

Q: She was mailed 2 charges at her dorm at IUP. One for public drunkenness and one for “possession” which she did not have. She was transported to ER in an ambulance but walked in voluntarily (called by a college student resident). She noticed while in her room that there was a backpack on a chair that the nurse said was brought in with her. It was not her backpack and she didn’t bring one with her to town. She said it had a male student ID in it of no one she knows. Her trial was rescheduled 7 days later, and we have just found out that the requesting person is a police officer that has a bad record and notorious for doing things like this. Should we get legal representation? We are not fighting the drunkenness charge but do want to fight the possession charge. She was not carrying any beverage or container and did not purchase anything. We simply want to ultimately have her record expunged for underage drinking. We definitely want to fight the possession now that we know the officer has a history. (Pittsburgh, PA)

A: Don’t risk her future, speak with a lawyer. The public drunkenness, if convicted, will stay on her record as a non-traffic summary offense for 5 years, before she can expunge it. The possession is a misdemeanor which could also stay on her record for I believe 10 years if convicted, before she can expunge it. There are ways to have these charges dismissed or first-time offender’s programs available that involve a withdrawal. An experienced criminal defense attorney can guide you through this. The police could even add a charge under 18 PA CSA Section 6308 for underage drinking which also can result in a record and a driver’s license suspension. That charge too has a first-time offenders disposition that can be offered. Again, do not plead guilty to any of the summaries and request a hearing to be heard at the time of the Preliminary Hearing on the misdemeanor possession case.

Can my brother force the sale of my mother’s house?

Q: My mother is in a nursing home. Before that I was her caregiver. I am still her power of attorney. I still live in my childhood home and have started a family of my own. My brother just got out of prison and wants the house. He only lived in the house for one year and never paid even one bill. I used my retirement from a previous job to pay off the house and I’ve paid every bill for almost 10 years. My mother has 4 children in total and everyone else has started a family and lives elsewhere. Does my brother have any rights? Can he force my family out of the house? Can he even try to sell without permission from me and the rest of my siblings? (Pittsburgh, PA)

A: What does your mother’s will say? I am assuming your father is not alive. If your mother is competent, she can sign a will which leaves the house to you. If your mother has a will which leaves everything to the children equally, you may not get to keep the house and be forced to buy your siblings out if you want to keep it. The same result could happen if she has no will, under PA intestate succession law. If the sale of the house would be the result, you have a good argument to recoup your investment in it from the proceeds of the sale. I would consult with a lawyer as soon as possible and before your mother’s condition digresses.

Will I lose license. Will I have to do rehab?

Q: I got caught with 2 grams of marijuana when I was driving. I already had my preliminary hearing where I signed a waiver saying I am eligible for the “probation without verdict” program. If I do this, will I have to go to rehab. I’ve been there, and it doesn’t help, that is where I got hooked again. And, I don’t have the money. Will I lose my license? (Pittsburgh, PA)

A: If the judge orders drug and alcohol treatment, you will need to go. Otherwise, no. With Probation Without Verdict, there is no conviction. You cannot have your driver’s license suspended when there is no conviction. There are exceptions, such as when you refuse sobriety testing, but that does not apply to you. Make sure to expunge your record of this offense when your case is closed.

Sold 6.5 grams of marijuana and got a felony

Q: This happened 10 years ago when I attended Penn State. I have had no trouble since. Even the D.A. later said “usually you get a choice of either a misdemeanor and a few months of jail or a felony and no jail time. Well he was the D.A., so I am sure he did not have my interest foremost in his mind. When I got sentenced his assistant DA was the one at my case. I served my sentence but now the felony is ruining my chances of a good life. How can they give me a felony if the guidelines say a misdemeanor for anything under 30g’s? What can I do? (Monroeville, PA)

A: It sounds like you pleaded guilty to a felony for delivery. Regardless of the amount, a delivery is a delivery and always a felony. I don’t practice in your county and in my county, this case probably would have been worked out to a misdemeanor or even a summary. Since this happened 10 years ago, you have missed your appeal deadline of 30 days and your rights under the PA Post Conviction Relief Act, which require filing within one-year of conviction. Unfortunately, your only option is a pardon.

How do I get power of attorney for my grandfather who is currently in a different state?

Q: My grandfather is currently in a different state (Ohio) and I’m in PA) at a physical rehabilitation facility and they are pressuring him to sign a contract for long term care. He doesn’t want to do this, but his daughter (my mother) does not want him to live at home with her. I am willing to take on care for him and move him in with me, but I want to make sure I do everything legally. He is mentally present with no dementia but does need constant care and handicapped accessible housing. I can provide both. What steps do I need to take? (Robinson Twp., PA)

A: If you want to be his caretaker and your motives are pure, that is commendable. If your grandfather is competent, he can sign himself out of rehab and move out of state with you, if that is what he wants to do. He is free to make his own decisions and live with whom he wishes. If the situation is more complicated, I advise that you contact an attorney where your grandfather lives and set up a meeting with you and your grandfather. The attorney can assess your grandfather’s competency and his willingness to go with you. If needed and appropriate, a Power of Attorney can be executed which would give you authority to manage your grandfather’s affairs if or when, he is unable to do so. If needed you can discharge him from the rehab with the POA. Once in NC, you should consult with a lawyer there to have state specific documents drafted for going forward.

Mixed drink and a half of a beer get me DUI?

Q: The cop was sitting and waiting for people to leave bar after work and pulled me over. He had my car towed. When I told him I would walk he gave me a sobriety test that I passed. He took me to hospital. I said no to the blood test and asked him not to tow my car. He asked me if I have a condition that would prevent me from taking sobriety test and I said yes. He still made me do it. I passed the nose finger-to-nose tip test. He took me to hospital. I refused the blood work. What can he do? He has no blood proof and I passed the test. (Pittsburgh, PA)

A: My condolences and all but he can arrest and likely convict you. If you only had a mixed drink and half a beer, why would you not comply with testing? Your refusal will result in a one-year suspension in addition to a one-year suspension for the DUI if convicted. As you can probably guess, the officer’s Affidavit of Probable Cause, which will be attached to your criminal police complaint, will paint a picture of an intoxicated person. With no blood or breath test to gauge your BAC, it will be your word against the word of the officer as to whether you exhibited behavior consistent with being under the influence to the extent you that were incapable of safe driving. If you plan on defending this, you will need to consult with an attorney on your chances.

My POA sister-in-law for my husband stole 40K from him

Q: My husband lives in assisted living facility and my sister in law has not paid any of his bills for the home nor had she paid pharmacy bills, etc. What can I do? She will not answer any phone calls from me nor the assisted living facility. (Pittsburgh, PA)

A: Call the Department of Aging and report Elder Abuse. You may want to see if the police can help. Neither agency may want to be involved as your sister in law is presumably in charge and it may take a court order for them to investigate her use of his funds. Although I would talk to these agencies, it may be necessary to involve a lawyer to file a petition for accounting which will force her to account for her use of his funds. If it turns out she stole money, criminal charges of theft and civil liability may be in her future.

How will the Will execute for a parent who on Medicaid?

Q: The surviving parent dies while residing in a nursing home. She has been covered by Medicaid for past 4 years. The Will reads that the only child is her beneficiary. Knowing that Medicaid is entitled to some portion of the parent’s estate (less than $2,000), is Medicaid entitled to the full amount or only a share of the residual estate? (Pittsburgh, PA)

A: Generally, Medicaid will be entitled to a share of probate assets depending on the amount of their claim. If it is necessary to open an estate, the estate is required to notify the PA Department of Human Services (DHS), who manages the federal Medicaid program, of the death. DHS will reply to the estate with an Estate Recovery Statement of Claim, which will inform the estate how much DHS is seeking as a claim. The estate then needs to address DHS in writing regarding settling the claim or explaining with supporting documentation why the claim cannot be settled (i.e., insufficient assets), whether an estate is opened or not. If the remaining estate of this person is $2,000.00, it is doubtful Medicaid will seek a claim, but you never know. You may be able to shelter the money with a funeral related expense. I suggest you consult with an attorney regarding this matter.

Pelger Law

William R. Pelger, Attorney at Law in Munhall, PA