First DUI

Q: Asking for a friend here. Her BAC was .210 and .181. This is her first DUI. What will happen and how much trouble will she get in. Will she lose her license? Should she get a lawyer? (Baldwin Borough, PA)

A:  If she truly has no prior record, is ARD eligible, and, she has no solid defense, ARD would be a good option. Those blood alcohol content readings sound strange due to the disparity, but assuming she is over .159, she will be looking at a 60 day driver license suspension if she is ARD eligible. If not ARD eligible and she pleads guilty or is found guilty, she will receive an 18-month suspension. Have her consult with an experienced criminal defense attorney to assess whether she has any defenses and what her options are.

Must I wait for funeral home to sign their forms?

Q: My Aunt passed away in January. Her husband passed many years ago. She gave me keys to her home. Years later she had me sign a paper making me a beneficiary on her insurance. 5 yrs ago I noticed signs of dementia. My cousin also spoke regularly with my aunt and worked for a wealthy family and went to prison for embezzlement. She married the son of a funeral home owner, that was accused of stealing from clients. He moved his family to the south. When my cousin got out she joined him. After his father passed they relocated back here and he took over. I used my aunts key 1 time when my daughter and I went in to clean up after her dog and bathroom before she came home from the hospital. My cousin manipulated her and accused me of stealing papers from the house. I had helped my aunt with a bankruptcy and didn’t need to steal. They disposed of everything she owned and put her in a nursing home where I would visit her. After she passed they called me to say I need to come sign papers to get a check. I told them I needed a lawyer to look at them. They didn’t look right so I called the insurance co, filled out the claim form, and no assignment papers. I asked for a check to me. (Valencia, PA)

A: What is the question? If in fact you are the beneficiary of an active insurance policy, generally, all you need to do is fill out their claim form and any other forms they want such as a death certificate and copy of your ID. You should then receive a check. I have no idea why the insurance company wanted you to come in. Perhaps they want you to sign the insurance proceeds over to them to pay for the funeral. If the policy is payable to you only, you have no obligation to do so. If your aunt assigned the policy to the funeral home, that is another matter. PA does have a filial law statute whereby certain next of kin are obligated to pay for medical debt of the indigent but let them explain how that applies to you.

Insurance company is suing my 90-year old dad with dementia?

Q: A homeowner’s insurance company insuring my downstairs neighbor’s unit has summoned my 90-year-old father to court on a 4K claim of subrogation for a leak to the neighbor’s unit. Insurance paid out and is now suing my dad for the 4K when he is in a Nursing Home on Medicaid 24-hours away with 7 years of dementia. I cannot find any lawyer in the area to represent him and cannot figure out what other steps to take on the case. There are no options to pay out or settle out of court. I have presented documents proving he would not be fit to stand in court that day. Any suggestions? The court date 5 hours drive from my home and 5-hour drive from dad’s Nursing home. (Monesson, PA)

A: Is he the building owner? How can he be on Medicaid if he owns a building? Having dementia, does not necessarily mean he is incompetent or relieved from testifying. Why doesn’t he have insurance? Regardless, if your father is incompetent to testify, or just due to physical and medical reasons cannot come to court, you may be able to have his presence excused. You may be required to get a court order if you want him to be totally relieved of testifying. If you are relieved of only the duty to have him come to court, a judge may allow the insurance company to take his deposition. If you can get a guardian order or judicial determination that he is incompetent to stand trial, they he would be relieved of all testimony-deposition or trial. I would need to know many more facts to properly advise.

Can trustee allow her adult children to live in father’s house rent free?

Q: My father’s second wife passed away in March 2016, at which time my sister immediately had her children, ages 20 and 22 move into one of his houses under the stipulation they were to check on my father every day and pay the cable bill. They have done neither. My father pays their bills unknowingly, and my sister, as trustee, won’t give my father a copy of his will and trust so he can see what he signed. With the exception of my brother and I, the rest of the family constantly lie to my father about issues concerning his health, driving, and legal issues. Due to his early stage dementia, this causes more confusion for him. My sister (trustee) has stated a couple of times that she wished our dad would die. Doesn’t that constitute elder abuse? (Glenshaw, PA)

A: With early stages of dementia, your father can still be competent. If so, it is up to him to allow the grandchildren to live in his house and allow your sister to be an influence. If he made her trustee of his trust (if that is what you mean) he must trust her to some extent. However, as Trustee of his trust, she has an obligation and duty imposed to preserve trust property. Allowing her children to live in your father’s house for free does not sound she is acting in a fiduciary capacity. If you feel he is being taken advantage of, have a talk with him. He can always make you and/or your brother Agent under a POA if he is still competent. If he should digress to the point of being incompetent, you and/or your brother can file to be his guardian in court. If the sister also wants to be his Guardian, you may have a contested guardian hearing. In addition, if you believe she is mismanaging the trust, your lawyer can file for an accounting of that trust with the court. You will need the advice of a lawyer to handle these procedures.

Is my Mom responsible for Dad’s nursing home bill?

Q: My dad was in a nursing home and passed away. My mom received a bill saying that she owed $1500 for my dad’s stay in the nursing home. This was over a year ago. (White Oak, PA)

A: This used to be an easy question to answer. In the past, if the community spouse, in this case your mother, never signed the bill as a guarantor, and an estate was not opened for your father, I would say, no. However, many states, including your beloved Commonwealth, have passed “filial” responsibility statutes which hold spouses and next of kin responsible for the medical bills of an indigent person. I would hold off on paying it, exhaust all insurance coverage options, and let them explain to you why your mother owes this bill. If necessary, consult with an elder law attorney in your area.

Can I use Small Estate Affidavit to obtain insurance proceeds?

Q: My son was killed in a single car accident in Pennsylvania, where he also was a resident. He had no will. The auto insurance paid for the car (he owed nothing on it) payable to the “estate of (his name)” in the amount of $11,200. I was not going to open an estate for such a small amount. Can I use the Small Estate Affidavit under the 3101(d) Probate Code to have the insurance company make the check payable to me? He had no wife or children. I realize 3101(d) just covers up to $11,000. I would be willing to ask the insurance company to forego the $200 if they will reissue the check to me. The insurance company says they can only make the check payable to whoever the car was titled to. Any suggestions on how to handle this situation? Thanks. (Pittsburgh, PA)

A I believe the statute reads, accident, life, etc. so I am not sure why they will not pay up to $11,000.00. Sometimes, claims people at insurance companies, especially if they are not in PA, are not familiar with the statute. You may want to send a copy to them and highlight the applicable portions of Section (d). Whether the issue is the $200.00 excess with them, I don’t know. I would think you can sign a waiver of that and the $200.00 would then be transferred to the PA Department of Unclaimed Property.

Can I get jail?

Q: Can I get jail for taking a customer’s wallet from his shopping cart? (Pittsburgh, PA)

A: If you turned it in to lost and found or the manager within a reasonable amount of time, most likely not. If you retained control over this wallet, you may be charged with theft. If you have no criminal record, you may be able to get and ARD resolution of your case, or perhaps another diversion. Unless you have a lengthy criminal record, jail is not likely.

How do I hold POA uncle accountable for my mom’s money?

Q: My mom had a will and trust. My uncle had power of attorney over her and he went on a power trip. I know he had some bank accounts in his and her names on that were considered part of my mom’s estate and is he accountable for the bank accounts. If so, how do I go about getting him to be accountable and showing receipts for his withdrawals of the bank accounts during his time of power of attorney. During that time, he filed a restraining order against me, my mother’s only child. (Pittsburgh, PA)

A: You can ask him for an accounting of all bank statements and receipts, but it sounds like that is not going to happen. The correct legal procedure needed to hold an Agent on a Power of Attorney accountable is to file a petition in probate court asking for an accounting of all expenditures and deposits. I would not try this on my own if I were you. You should consult with an attorney.

How do I get custody of my 15-year-old granddaughter?

Q: I am in bad health and do home dialysis. She is staying with me now and has been for about 6 months. I have applied for government housing but can only get a 1 bedroom unless I have legal custody. I am on social security and do not draw very much so I need to know what is my best option? (Crafton, PA)

A: You should have something in writing signed by the parents (if there is a father that has custody rights at this point) which transfers temporary physical custody of the child to you. The optimum method of doing this would be to obtain an Order of Court, signed by a Judge. This will be easier if done by an attorney. If you cannot afford one, you may be able to seek legal help if you are under a certain income level. It will be easier if the father consents. The other option is to ask Social Security if they will just take a letter signed by both parents. This would be less expensive. You may also want to ask the school in which she will be enrolled in and whatever medical providers she will see, what type of document they need. You may also want to consult with an attorney regarding having CYF involved. Doing so, may or may not be an advantage to you, depending on your entire situation.

My mother’s will was never notarized. How do I handle her estate?

Q: I have the original will with signatures, however, it is not notarized. The will has 2 executors who have not started any legal proceedings to settle my mother’s estate due to them not wanting the responsibility. The estate includes a house and an Allstate insurance claim. The will states that my mother’s four children and her boyfriend (executor #1) are to be willed her house, belongings and any monies left. Two of my siblings (over 18) still reside in my mother’s home. I pay the property taxes as there is no mortgage and they pay the utilities. The Allstate claim is from an accident settlement my mother received for a car accident that turned her quadriplegic. We believe this Allstate claim is to pay back Medicare since the settlement monies were put in a trust for her medical expenses. To our understanding, once Medicare is paid, whatever monies left over will be split amongst all parties listed in the will. To our knowledge it is over $400,000 that Allstate must disburse. Us four siblings have no clue how to move forward with getting her estate settled and being legally put on the deed to her house. (Pittsburgh, PA)

A:  It sounds doable. A will is not required to be notarized to be legal and admitted to probate. As stated, if she signed at the end of the document and two witnesses have signed below her, it should be admitted. If the boyfriend does not want to be executor, he can renounce, and the testate heirs (in the will) can choose another person to serve if they all agree. Are you sure it is Medicare and not Medicaid? My thought is that it is Medicaid who has a lien, and they will be need notified of the estate and settled with. I think the more complicated issue may be dealing with the two siblings who live in the house. Nothing here is that unusual that an estate attorney cannot help you with so you need to make an appointment.