Can I be added to a POA without my consent?

Q: My sister, brother and his wife have POA over our mother. For 12 years, they would not let me see her. Now they expect me to take care of her so they can travel. They listed me as first contact without my consent or signature on her medical, dental etc. Is this legal? My sister put herself last because she plans on traveling 3 weeks out of the month. Now that our mom is 95 and needs more help. Then, I get a phone call from my brother stating that I am the first contact and all her appointments are written down along with her medications. I am going through extensive PT right now and they are all retired and my husband and I are not healthy. If they are going to do this to me can I charge them for what a 24-hour caregiver makes? (Pittsburgh, PA)

A: Under PA law, you would have to sign the “Acknowledgement” portion of the Power of Attorney document to be legally bound to serve. It is not enough just to name you as an Agent. I think if it becomes a problem, you should ask your siblings for a copy and review it with a lawyer. Also, even if you were an Agent on the POA, under PA law, you can resign being an Agent by providing written notice to all parties involved. As for earning a fee, this needs to be specified in the POA document.

How can I make sure the assets of my incapacitated father are being handled properly?

Q: Both my father and stepmother were admitted into the hospital 2/5/2017. His blood/sugar level was at 900, he was diagnosed with vascular dementia and gets more confused every day. His wife has had Parkinson’s for 20 years, which has recently been getting worse. They’re about 80 years old. My stepmother is supposed to make all the decisions regarding my father’s health and finances, but she’s deferring most of those decisions to her son. My family wants my sister to have joint power of attorney with my stepbrother regarding my father’s health and finances and regarding any joint assets belonging to my dad and stepmother. My stepbrother says that’s fine with him, but has yet to do it. Instead he’s closed my father’s checking and savings accounts, is putting their house on the market and will not disclose any financial information. We’re afraid she’s planning to divorce our father and leave him broke in a substandard nursing home. My sister and I don’t live in the same city as our father. They live in Pittsburgh. My sister lives in Erie, I live in California and the stepbrother lives just north of Pittsburgh. What rights do we have in this situation to protect our father? (Pittsburgh, PA)

A: That is a tough situation. You need to do some investigating quickly. You can call Adult Protective Services to assess him. Your sister may benefit greatly from consulting with an elder law attorney in Pittsburgh. It may be advisable to have her appointed Guardian of your father by the Orphan’s Court.

Can I do anything about my landlord?

Q: I bought a house and am trying to get out of my lease that doesn’t end until July. I am moving in April. The landlord said he would try and rent out the apartment so I wouldn’t be stuck with the bill. They posted an add but it had been a month and I started to realize they aren’t calling anyone back. They won’t even call people I sent them from my own ad. Also, I woke up last April with my ceiling leaking. They did not fix the roof until November and my ceiling until this past February. I was unable to sleep in my room because it was unsafe. Is there any way I can sue for not being able to use my bedroom for almost a year? (Swissvale, PA)

A: There is a common-law principal of constructive eviction that allows you to not pay rent in proportion to the percentage of your property that you are by no fault of your own, “constructively evicted” from. In your case, if your bedroom is one-quarter of your apartment space, you could deduct one-quarter from your rental payment. Now, this does not always go over well with the landlord. You should be prepared to defend this in court. Photographs, copies of letters to the landlord memorializing your complaints would help your case if push comes to shove before a District Justice.

How can I eliminate my debt for my repossessed van?

Q: I lost my job and suffer from medical conditions. I was behind in payments and just gave up. They took it out of my doctor’s parking lot, and I had to walk home.

A: Your options are to defend the suit if they sue you and/or try to settle with them for payments. You can also talk to a bankruptcy attorney and see whether filing under Chapter 7 is an option for you.

Can I sell parents house with a POA if my sister is on the deed?

Q: Seeking POA & Health directive for elderly parents to sell home for medical care. However, the equity in the house is shared by my sister. It is a Trust deed shared by Parents and sibling -all 3 live together. Both parents are elderly and one is caregiver of the other who is seriously disabled. Both need medical attention so I want to intervene to force medical care. I want POA to sell house to counter expenses- medical and future assisted living cost. However, co-owner sibling of house does not want to sell house and wants house in retirement. Legally, once I get POA then I have control of parents finance and will sell home for the equity to pay for parent’s assisted living expenses and medical care. No money remains for-co-owner sibling, but she can utilize her portion of equity to pay for elderly parent’s medical expenses too.

A:  Having the sister on the deed with the parents may be a problem for you as an agent on a power of attorney trying to sell this house. You need to have an estate planning or elder law lawyer look at the deed. If your sibling holds title as joint tenant or as a tenant in common, you just cannot remove her from the deed. What is happening here is why people should seek competent legal advice before putting a child on the deed to their home. You may also have some potential Medicaid issues if you believe either parent may need to apply for nursing care assistance in the future. You may be able to shelter the house and other assets and have the parents remain eligible for Medicaid, if you follow the advice of a good elder law lawyer. The fact that one spouse may remain in the home when the other is hospitalized and there is a child living in the home, may benefit your parents with Medicaid eligibility. This is a complicated situation and you need to consult with a lawyer.

 

Is it legal for a 19-year-old to produce homebrewed beverages?

Q: I’ve always been interested in experimenting with the possibility of homebrewed beverages, and am curious if I truly need to wait to start trying different things out. Assuming I DO NOT CONSUME what, I produce, and do so with direct supervision of someone over 21 in their home, with them maintaining possession of the drink the entire time, would I be legally allowed? (North Strabane Township, PA.

A: Probably not a good idea. Under Title 18 section 6308 of the PA Crimes Code, a minor (under age 21) cannot consume, transport or possess alcohol. It would be hard to argue that you do not possess it if you are making it. Maybe stick with non-alcoholic beer or root beer.

Limited Power of Attorney question

Q: There are seven owners (including myself) of a property. I wish to get a Limited Power of Attorney (POA) from the other six that will give me the ability to list and sell the property. Do I have to customize the POA for the state where each owner lives or can I simply use the POA for the state where the property is located? Also, one owner lives in France, will that POA must be different? (Seven Fields, PA)

A: If you are using a Power of Attorney in the jurisdiction of Pennsylvania, it must comply with Pennsylvania law. A limited power of attorney for specific purposes, such as one for selling real estate or representing another person at a real estate closing, is not a General Durable Power of Attorney and therefore does not need to comply explicitly section 5602 of the Probate, Estates and Fiduciary Code. You would be better having an attorney draft a limited power of attorney. If you want to handle it on your own, the only basic advice I can give you is to make sure none of the parties to the document are minors or incompetent and that the scope of your powers (what you are doing for them) are clear.

Do we have a winning case?

Q: My husband just received news that he is facing jail time, fine, etc. for an error he made when filling out the PA Handgun purchasing form 4473. He checked “no” on question 11b & 11c asking if he had a felony or a crime of over 1 year sentencing. He misunderstood the question to begin with and the misdemeanor offense in 2000 that triggered this was served as a probation and ARD program. He was told he would have no criminal record by having the ARD program. Not to mention, form 4473 is directly from 922 Brady act from 1993 (or something like that) which is expired since 93 since FBI established NICS system. This is a trap! He is innocent. He did NOT willfully or intentionally lie on the form. Why would he? He knows that they would find out if he has a record either way. There’s no point in lying! He is our family’s sole provider, he can’t go to jail.

A: The form is inherently confusing as very few people have the PA Crimes Code committed to memory when they fill out the form. I have had some success in defending these when the person has no other criminal record and the police are open to or intelligent enough to understand the confusion generated by the question. What I like about your husband’s facts is that if he received ARD, he was not even convicted! Some counties expunge all criminal arrest records after ARD and some counties do not. Perhaps the county (Dauphin) he received his ARD in did not do so and the arrest record still appeared when they ran the background check. I would look at his file in the courthouse to make sure it was an ARD disposition and order his criminal history from the PA State Police. Also, when you get through getting his charges withdrawn, you will need to expunge his old DUI and his new arrest records. (Pittsburgh, PA)

I’m concerned about the law that was passed in PA for limited access to my criminal record

Q: I have two summary charges from 2006 for Retail Theft and Disorderly Conduct. Would I be able to have those charges sealed from employers if I got another summery conviction in 2016?

A: Summary non-traffic offenses can be expunged if five years of arrest-free behavior has passed. Based on what you are saying here, it sounds like the 2006 offenses could be expunged. The process takes at least 6 months, often more, to have the records disappear. If they are Allegheny County charges, I would hire a lawyer to get started now. (Pittsburgh, PA)

If my mother is in a nursing home can she change power of attorney?

Q: My mother is in a nursing home until she gets better with cellulitis. She wants to change her power of attorney to name me instead of my sister. Is she able to do that while being in a nursing home? Thank you. (Bridgeville, PA)

A: If she is mentally competent, absolutely. If her competency is not certain, you can ask her doctor if he would give an opinion. Also, the lawyer you hire to prepare the Power of Attorney can assess her competency before preparing the document. This should be your mother’s idea and not your idea.

ELDER LAW, COMPETENCY, POWER OF ATTORNEY