How do I get a court appointed lawyer?

Q: Charged with sex offense. My “lawyer” is threatening to withdraw his appearance 2 months before trial. I hired my lawyer because I was accused of some serious child molestation charges which could put me in jail. I was never arrested and only knew about the official charges from my lawyer. I received ROR bonded at arraignment he showed up a preliminary hearing and told me he was unprepared and to waive downtown only to charge me $750. He agreed to take the case on payment plan but now wants $5000 this week and $2500 ten days before trial (which for me is impossible). Now he is threatening to withdraw in 3 days. He already entered his appearance only because his wife emailed me and told me I didn’t need a lawyer for my formal arraignment and the judge threatened to withdraw my bond. Now my question is what can I do as far as hiring a court appointed, and how much of a disadvantage am i know? What can i do? (Moon Twp., PA)

A: It sounds like you need a new lawyer. Whatever you do, do not wait until the last minute. Judge’s are lenient in granting continuances when defendants obtain a new lawyer. If you cannot afford private counsel, get documentation of your income together and apply for a lawyer with the PD in room 400 of the County Office Building. You can talk to your PD, have him represent you and at the same time raise money for private counsel if things are not progressing with the PD as you like the closer you get to trial.

CRIMINAL LAW, COURT APPOINTED LAWYER, PUBLIC DEFENDER

I am being charged with Simple Assault

Q: I was charged with simple assault misdemeanor 3 for someone trying to assault me at my home. I am a paralegal who worked for a attorney in my town until his passing. I have a question that will blow your mind. A man posted on face book pictures of my house, stating he was coming to my house to kick in my door and drag me outside and beat me. (Of course I have screen shots) Hours later this man came to my home. Upon opening the door I physically assaulted him with six full cans of pop wrapped in a pillow case, repeatedly. I did this immediately as he knocked aggressively and I opened the door. Now the police officer handling the case calls me today to give me a heads up that the D/A is charging me with M3 Simple assault. The man said I stabbed him. WRONG. I even let the police view my home that has small children inside at the time. How the hell is it possible I am charged with anything. YES I have a vast criminal record. YES I assaulted him on my porch. What is my next step? (Pittsburgh, PA)

A: Two people engaged in a fight can both be charged with Simple Assault by Mutual Combat which is an M3. You may even have a self defense argument. They key is not to talk to anyone, including the police, except an attorney. Save your screen shots and preserve all other evidence.

Can a landlord charge for time and labor in PA?

Q: My tenants left without a 60-day written notice required by their lease agreement. One day they just send me a text message that their lease expired and the keys are on the kitchen counter top. Of course they did trash the place. I even found dog poop in the house, when they were not authorized to have pets in. My husband spent 86.5 hours fixing the property (carpentry, painting, cleaning, yard work) and I spent 15 hours of cleaning as well. Their security deposit was $1000 which covered materials. Can we charge for our time and labor and is $12/hour reasonable for his labor and $10/hour for mine when we go to small claim court?

A: Generally, yes. You can keep their security deposit to use in repairing damage they caused. Plus, if you sue them, you can charge materials and a reasonable labor rate for repairs to damages as long as it wasn’t normal wear and tear you are fixing. You need to keep a record of everything, take photos and you also may want a contractor to put a written repair estimate together, so your estimate appears reasonable. Sometimes court view high damage bills from landlords who do the work themselves with suspicion. Remember to respond to their written request for their security deposit in writing informing specifically them of why the deposit will not be returned.

Does the Executor have to show the siblings the Estate checking account and all bills paid out?

Q: My mother made me executor of the will and my brother is asking me questions about what is being paid and how much is in the account. Do I have to answer his questions?

A: If your mother has died and you are the executor of an estate that is opened in Allegheny County, I do hope that you have an attorney. I know of no obligation during estate administration of an executor to inform the heirs or other persons, how much money is being spent and how much money is in the estate account. However, before an estate closes, the heirs need to sign off on a Family Agreement. By signing the Family Agreement, the heirs agree that they have received their fair share of inheritance and they are satisfied that the estate was administered fairly. If they have suspicions about your activities, whether justified or not, they may refuse to sign the Family Agreement. This would then require your attorney to prepare a full accounting of the estate money and property, called a First and Final Account. The heirs are sent a copy of document with a letter informing them of when the account is to be presented to a judge for approval and that they have the right to appear in court and address the judge. My advice is this. If you are not hiding anything, you should provide at least some basic information. Just talk to the heirs, or let your attorney talk to them. I do this on occasion and I also keep an informal accounting of the estate account which I can send to any heir who requests. You will have less problems down the road if you communicate with family. If you are hiding something, you better inform your attorney.

Will the state take my car when I die?

Q: If I paid for my car with cash and I owe no money on it, can the state take it to pay my credit card debts when I die? I have credit card and student loan debt.

A: If you died and an estate was opened, all of your debts would become debts of the estate and would be paid in an order which favors certain debts over others. Funeral expenses, administration costs, attorney’s fees, certain medical bills and inheritance tax and income taxes are given preference. Unsecured creditors are then paid with what is left. If there is money remaining after all expenses are paid, then the heirs are paid. Your car loan is an unsecured debt. The lender would need to file a claim with the court. If there was money remaining to pay, the lender would be paid. As for your student loan, if you die before it is paid, the balance is forgiven.

Will a GoFundMe account for medical expenses affect SSDI or taxes?

Q: My mother is 59 and has a dual defibrillator in her heart, very lucky she survived the two-day surgery. She worked in real estate over 30 years and due to her heart is now on SSDI. Many of the things she requires are either not covered or have a high copay. A friend from church encouraged her to do a medical GoFundMe, as she is currently skipping medicines and appointments the times she can’t afford her share. I have heard that people with SSI/Medicaid can be negatively affected by GoFundMe, however my mother is on SSDI and not on Medicaid. I worry for her health, but she is definitely more focused on not wanting to hurt her SSDI or hit tax concerns. Sincerely, a concerned daughter.

A: Income derived from a go-fund me account will not affect SSDI. This is because SSDI does not put a limit on unearned income or assets an individual has. Medicaid and SSI are different as they are means test program that look at all the assets and income of an individual. You should review all of the facts with an attorney and an accountant.

Can I keep nursing home from taking all of my mother’s property?

Q: How does my mother make arrangements to keep a nursing home from taking her property in future? She is in a nursing home at present but will be paying on her own after 1/25/14. I would like to take her home with me to see if she improves but her mental capacities are rapidly fading. (Munhall, PA)

A: You have several issues here. One is your ability to care for her at home. The other is potential funding issues if she should deplete her savings and neither she nor you can afford the level of care she needs. This is a Medicaid issue. Consult with an elder law attorney or estate attorney before you do anything. I assume you are concerned about Medicaid. There is a 5 year look back from Medicaid on all transfers without consideration. Some transfers are allowable, others are not and could result in her being ineligible for Medicaid. You do not want to start gifting property to family or changing title to property unless advised by a lawyer.

Can I set up a trust for my mentally handicapped sister?

Q: Can I set up a trust or something similar for my mentally challenged sister? She currently receives state insurance and cannot have more than $2000 in her bank account. Otherwise, she will lose her health benefits if she has more than that. Do you know the best way to put money away for her that won’t interfere with these benefits?

A: It sounds like she received Medicaid benefits? There are two types of special needs trusts (SNT) which can be used to maintain eligibility for Medicaid while improving a disabled person’s quality of life. They are categorized as first-party and third-party. A first-party SNT can only contain assets belonging to the disabled individual and falls into two categories; the d4A self-settled trust and the d4C pooled trust. A d4A SNT can be established by a parent, grandparent, guardian, or court. An account in a d4C pooled trust can be opened by a parent, grandparent, guardian, court, or the disabled individual. If you are thinking of establishing a SNT using your own money or someone other than your sister’s money, you will be doing the SNT. This is a very complicated area of the law and you will need the help of an experienced elder law attorney who does special needs trusts. You can locate one by going to the website of the National Academy of Elder Law Attorneys or the PA Association of Elder Law Attorneys. Be sure to ask any attorney if he or she uses SNT’s.

Can I be arrested for using my ex’s credit cards?

Q: Can I be arrested or go to jail for using a debit card of my ex-lover for bills, even though he gave me permission to use it? My married ex-lover gave me his debit card to use to pay my car payment in November. He told me to keep the numbers handy in case I ever came upon any emergencies. He’s my ex, but we remained great friends. Well I lost my job, and I used his debit card to pay my rent, my car, and my phone bill. Now, he’s playing the jerk card and telling me I have to pay him the $2000 by tomorrow. What am I suppose to do? Can I go to jail? Can I be arrested? I don’t have the money to pay him back, and he gave me permission to use his card in the event of an emergency. (West Homestead, PA)

A: This sort of situation arises to a crime if you knew or should have known that you were not to continue using his cards and therefore not permitted or privileged to do so. If he tells that police that you knew, or should have known, you were not so permitted or privileged, you may be arrested for theft, access card offenses, etc. If in fact, you did not know, or should not have known, you may have a defense in what would be, a his word, against her word, trial. The danger is, is that it does not take much to be arrested. If you are, you will probably have a low bond. Do not make statements to the police and get a lawyer right away.

How does pleading not guilty by mental illness or defect work?

Q: If my boyfriend was having a schizophrenic episode and did cocaine because he currently thought he was the president and was around a really bad influence. We were able to get him help but he was on probation and missed his scheduled group meeting They urine sampled him now he isn’t sure if he did cocaine or not but he does take Adderall which in the urine test would come up the same as cocaine. I’m having it analyzed to see if its cocaine or Adderall now if it is cocaine. He didn’t really understand what he was doing. Is pleading not guilty by reasons of mental disease or defect a possibility? (South Park, PA)

A: If your boyfriend had a big tumor on his neck, would you try to diagnose it yourself and perhaps look up information on WebMD and then operate on him in your kitchen? If your friend has such serious mental health issues and is being prosecuted, he needs way more help than you can offer. He needs an experienced criminal defense attorney and he needs to be treating with a mental health professional. PA defines terms such as mental illness and guilty but mentally ill in Rule 314. PA follows the McNaughton Rule which basically means that your friend must be laboring under such delusion that he doesn’t understand what he is doing or the results of his actions. An insanity defense is generally a very difficult standard to reach or prove from the defense. However, his mental illness at a minimum may be mitigating factors to use in attempting to circumvent prosecution or obtain a diversionary program. Again, get him to a lawyer and if he cannot afford one, sign up for the Public Defender.

Pelger Law

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