If a person is power of attorney of their grandfather, can they give themselves gifts?

Q: Co-worker has power of attorney over his grandfather’s finances. Since then he has spent over $400,000 on buying himself vehicles, a boat, property, and other personal items on himself. The grandfather is being kept in nursing home. We are wondering if he can legally use the money this way, while his grandfather is still alive. (Bethel Park, PA)

A: It does not sound right as there is a strong duty for the agent to only act in the best interests of the principal. However, if the POA document states in writing the Agent can make gifts to himself, then it may be permissible. However, even if the agent is authorized to make gifts to himself, he may be liquidating funds that might be needed in the future to maintain adequate health care. This would be a violation of his fiduciary duties. Such spending may also jeopardize the uncle’ eligibility to receive Medicaid funding if he ever needs it. Therefore, even if gifts to himself are permitted, he would not be acting in the interests of the principal by diminishing the principal’s liquid assets. If you want to get involved, you may want to call Adult Protective Services to assess the situation.

Do we need to open an estate?

Q: Our dad passed Mar 7 and mom on March 13. An insurance policy needs to be paid to my sister and I. Do we need a Small Estate? No real estate involved. Bank accounts have been closed. They were both in an assisted living facility and most of their estate was spent on their care. The insurance company is insisting we need a Small Estate Affidavit. The insurance policy was issued by Dad’s employer in the amount of $2150. We do not want to probate the will for this small amount. What do we need to do and can we do it ourselves or do we need an attorney? Since our mother died so soon after our dad and we had no time to have the insurance paid to her, is this complicating the issue? Their will names my sister and I as co-executrices. (Pittsburgh, PA)

A: If there are living beneficiaries on the policy, the proceeds can be paid directly to the be beneficiaries without court or lawyer involvement. If the named beneficiaries are deceased, then the insurance company will only release the money to the estate. If the amount of the proceeds is under $11,000.00, section 3101 of the PA Probate, Estate and Fiduciary Code allows the insurance company to pay certain next of kin directly, without opening an estate. The insurance company may be from out of town and not know PA law. If you show them the statute, they may change their minds. If they still will not release the money, you can have an attorney file a small estates petition in Allegheny County as there are assets under 25k and no real estate. It may be a long shot, but some insurance companies have allowed me to obtain such proceeds with a document they have or which I craft if necessary, titled, Waiver of Probate and Release.

Can my lender sell my property and accelerate a heloc?

Q: I have been sick for over one year and my income has drastically decreased. My life is in shambles. Car was repossessed, no cable, internet or home phone, gas and electric. I have shutoff notices, but I was eligible for programs to help me. Today I opened the mail and a letter from my bank where I have a 30K HELOC is telling me they have charged off the balance on my account of $30,788.88 and accelerated this balance. Now I owe it in full. I’ve been trying to work with them for the last 6 months and have gotten nowhere. They were sending me an application for a hardship assistance, but I NEVER got them. They said it was sent twice. My main concern is if they can foreclose on my mortgage and must I pay them in full? I’m not even working, I don’t have that kind of money laying around. I am frightened and don’t know what to do, please help me, I am really scared. (Pittsburgh, PA)

A: Get to a consumer law attorney immediately. If this home equity line of credit is a lien filed on your home, they certainly can foreclose. It is my hope that a civil complaint has not been filed against you and you failed to answer it and thereby a default judgment has been taken against you. If there is time to answer the complaint, an attorney can do that which will slow the process. The creditor cannot just foreclose without filing a lawsuit against you and obtaining a judgment in court. Normally, the creditor goes after the property and does not seek a judgment against you personally, for any deficiency between what the house resells for and what you owed on the contract. However, the contract would need to be reviewed in order to confirm this. Again, look for an attorney.

Can I set up a special needs trust for my older brother who is receiving benefits?

Q: My 70-year-old brother is a named beneficiary in my Parents’ trust and will receive $120,000.00. I would like to ensure that this money can be preserved for his needs going forward – assisted living, nursing home etc. without affecting his current social security benefits. His wife is also receiving benefits of some sort. Neither are competent to manage their own affairs. (Ligonier, PA)

A: First question that needs to be known is, are your parent’s alive? Is your parent’s trust irrevocable? If so, what type of discretion does the trustee have in making distributions to trust beneficiaries? You really need to have the trust instrument examined by a competent estate or trust attorney.

Why did I receive a traffic ticket without a fine amount or court date?

Q: I received a traffic ticket for speeding while driving under a suspended license (from a DUI). The police officer did not bring it up or address it in the fine, but rather wrote that I was speeding 22 mph over the speed limit. I thought I was getting a huge break but when I got home I noted no fine amount so that I may plead guilty, pay the fine and hope I am not caught in the process of the suspension? Being that this would add 4 points to my driving record, does that warrant a mandatory appearance in front of a judge or could I call the Clerk of Courts to get the fine amount, pay it, and move on? (White Oak, PA)

A: Your question is a little unclear. I suggest taking the citation to a lawyer. If you were cited for speeding, 3362 and driving under a suspended license, DUI, 1543 b, you have a problem. The speeding will carry a fine, but the 1543 for a first offense can result in a one-year license suspension, 60 days in jail and a $500 fine. If you were cited only with speeding citation, and not a 1543 b, if you plead guilty and pay the speeding fine, the police cannot cite you thereafter for the 1543 as it would constitute double jeopardy and violate Criminal Rule of Procedure 109 and/or 110. However, what will likely happen is the cop will run your record after he gets back to the station, discover you are under and DUI suspension and cite you with a 1543 before you can get to court on the speeding offense.

MOTOR VEHICLE LAW, MAXIMUM SPEEDS, DUI SUSPENSION, 1543 (b), PLEA

Do I have rights to get my daughter home if her dad is in ICU?

Q: Our child does some weekends with her dad in Ohio, usually Friday and Saturday night. However, he’s in ICU for last 48 hours and will be at least 48 more. The child at a friend’s house and needs to be picked up Sunday morning. This is still fathers time. Can I, as the mother, pick her up at the friend’s house and bring her home with me to spend night? I have her 8 months of the year about. Father’s wife cannot tell the child where to spend the day/night if me, primary care Mother, thinks it’s best for her to just sit tight at home until dad out of ICU? Want to be sure I can go get her. (Wexford, PA)

A: Just a suggestion. This is not a good time to instigate a fight over custody. You will look like a jerk. I would need to read your custody agreement carefully. In every custody agreement there is an inference that a child may be in the company of a parent’s new spouse or partner, as part of normal life in their other home. I think you would be swimming up stream if you would take this in to Family Court with a motion. You may want to talk to the wife in a civil manner to see if she can work this out with you.

Does a Power of Attorney trump a Personal Representative in a will?

Q: There are multiple issues. My mother lives in the District of Columbia and has serious mental health issues, but she chose me as her Personal Representative in her will many years ago. I believe she is in the early to middle stages of dementia and believes I am her enemy, so she may designate someone else besides me to be her Power of Attorney in general and for health care. If she does this, does this action trump me as her Personal Representative in her will? If so, will I need to apply for guardianship and conservatorship if this happens as she continues to mentality deteriorate? Right now, she has some capacity, but has demonstrated that she cannot take of herself. She is a hoarder. She is not able to wash her clothes. She has apathy concerning her hygiene and living in a clean and sanitary environment, and she will not allow anyone into her house to assist her. At some point, I know that I will need an attorney, but I am not sure when to do this and how to help her. (Pittsburgh, PA)

A: An executor of a will handles the affairs and assets of a person after that person has died. The executor has no such power prior to the death. An agent on a power of attorney has power to act on behalf of a principal while the principal is alive but has no such power after the death. The agent on a power of attorney must act in the best interest of principal and in accordance with the powers specified in power of attorney document. My advice would be to meet with an elder law attorney and have your mother assessed for competency. You can also ask her physician to give you such opinion. If deemed competent, she can execute a power of attorney in which an agent is designated to act on her behalf. If not deemed to be competent, she cannot execute a power of attorney. If there is no power of attorney in place and she continues to deteriorate, you or another family member may have to petition the court to become her guardian. This will require the assistance of an attorney.

Does cash under the mattress get reported to probate court?

 

Q: Does cash under the mattress have to go to probate court when somebody dies? The death person gave this money to relatives to hold to prevent creditors of the estate from taking it when he dies. It is impossible for the creditor of the estate to know that this cash exists. A probate lawyer told the two adult children after examining all bank statements of the death person that it needs to be reported. The creditors think that this money was spend. The death person was living rent free in a house that legally belonged to relatives. (Uniontown, PA)

A: Yes, it must be reported. It is considered property of the “death person” in the form of cash and part of their estate. It must be reported on the estate Inventory and estate Inheritance Tax Return.

Can I get a gun in PA with a 30-year old expunged arson conviction in CA?

Q: I was convicted of Arson 30 years ago at age 19. Received 3 years of probation with 1-year jail time. I turned myself in, it was my first offense and I had a good lawyer. I had my record expunged 25 years ago in CA (1203.4). I obtained R.N. license in CA and PA and still practice in PA. I serve as licensed Minister in local church. Will PA grant me license to own and carry? Last employment change to work in hospital had the record on it, with notice of expungement included. (Wexford, PA)

A: Expunged, at least in PA, means that the criminal records have been deleted and destroyed and they should not show on your criminal history. Only certain types of arrest records and conviction records are eligible to be expunged in PA. My advice to you, and for anyone I do expungement work for, is to obtain your criminal history from the PA State Police. If your criminal history shows this crime, then you can begin the inquiry as to why, if it was supposedly expunged. Did the court administration in CA just not send the order to expunge out, or, does PA not acknowledge an expungement of this category of crime from another state when it is not eligible to be expunged in PA. I would have to inquire myself and I would start by obtaining your criminal history. My concern is that because the crime of Arson is not eligible to be expunged in PA, you may have a problem. However, I would inquire before throwing in the proverbial towel.

If I am served with a PFA, am I protected against her?

Q: The initiator of the PFA has gone on a tangent contacting my friends spreading false rumors. Now yesterday, she went to my current girlfriend’s place of employment. This is continuous, how do I go about protecting myself from her abuse and harassment?

A:  If she filed first, you are prohibited from contacting her, in any way (directly, through others, texts, telepathically, etc.) You are not protected from her. You can try to file your own Petition, but it is likely the police or court will not take a cross PFA petition. If she just filed, make sure to get an attorney for your hearing. Until then, A) record as best you can, with photos, saving texts or emails and in a log book, all incidents of contact by her directly or indirectly, B) do not respond to her at all-either via email, text, telephone, through a common friend, C) Avoid her like the plague. Do not answer her calls, do not drive near her home, work, friend’s house, etc. Keep your blinds down, doors locked and change your routine habits. Instead of going to the gym or grocery store at the same time, go at different hours. Do not take the same method of transportation to work. If you drive, drive a different route each day, or take public transportation. Try never to be alone in public. Have your cell phone ready to record when you are out in public. If necessary, arm yourself. And, follow the advice of counsel.