If nursing home gets guardianship for mom will I have to move out of the house?

Q: Nursing home is applying for guardianship of my elderly mom. If they win will I have to move out of the house that both mom and I own as joint tenants with rights of survivorship. Will they force me to move out to sell the house to pay nursing home bill?

A: You need to contact an elder law attorney asap. If you feel you can handle being Guardian, you should file through an attorney. An attorney can advise you on this and how to protect that home from a potential Medicaid claim which could arise down the road. If you have been living in the home as mom’s caretaker you may be able to keep it for yourself.

Friend arrested for DUI in the driveway

Q: My friend is going through the process of his second DUI. He is not convicted yet. He was sighted again this past Sunday for a possible dui and possession of a controlled substance. What happened was he was drunk at a friend’s house, his phone died so he went to charge it in his truck. This was a private driveway. The cop approached told him to get out of his vehicle (private property) proceeded to search him without consent. Mind you this is the same arresting officer from the second DUI, and he hate my friend.

A: Hire an attorney and fight the case. If the vehicle is still in the driveway, without the engine running and he was not attempting to drive, you may have a defense. These cases are tricky and can turn on the smallest details. However, it sounds like he may have operability defense, a defense of the vehicle not being on a public street and perhaps even probable cause.

Can we sell dad’s house?

Q: My father is getting older and we are going to sell his house to pay for assisted living care. Can items such as an old car. Car is only worth about $1000. My other brother is concerned that would be considered a gift and will cause IRS issues or if later if his money is gone before he dies that if he needs Medicaid assistance. That might cause problems later. We are also trying to get help from VA but they are slow. Brother is also worried about keeping some money from sale of father’s house for burying him if VA doesn’t come thru in time. Said could take years to find his records.

A: In the event your father would need to qualify for Medicaid funding within the next five years, any transfer of his assets without fair consideration (such as gifts to family) could disqualify him from Medicaid eligibility. I would consult with an elder law attorney who does VA benefit law as well. You should not start liquidating his assets without the guidance of a lawyer. If you transfer this car, please document its value with an appraisal, or repair estimates or photos. You may end up paying back the value of the car some day to Medicaid in order for him to qualify. If you sell the house, you must sell it for fair value and keep records to the penny as to how the proceeds were spent on your father’s care. It is his money. You could benefit from a lawyer as you may be able to shelter some of this money from Medicaid.

 

Is a bill of sale legal for piece of land and how do I get the deed?

Q: The owner sold me part of his land and now he said he can’t split.

A: No one can answer that question on the limited information you have given. I would need to know much, much more. A real estate attorney should review the sales agreement, the deed, the map and so forth. It may be that the seller had good intentions but now he realized he needs to subdivide his lot to sell you a portion. The subdivision of property requires much work and usually involves getting zoning approval from the municipality. It concerns me that you think you were sold a piece of land but do not mention that your name is on the deed. It sounds like neither of you has an attorney and you need the advice.

Who gets what in Mom’s will?

Q: My Mom and her husband of 33 years built a home during their time together. Later, he died and left everything to her. Her will stated that all of her Jewelry, clothes, antique furniture went to me. I was told that since she remarried 7 years ago that the old will is no longer any good. I was also told that the house now goes half to her new husband and half goes to me. He says that he thought it all went to him. Can you please help me?

A: Mom’s will determines who inherits from her. If she has no will when she dies, state law , the intestate succession statue, determines who inherits from her. Most likely, this will be the first $30,000.00 to the spouse and the balance of her estate to be split between her spouse and her children. If mom’s will leaves everything to you and excludes her new husband there is a statute, the election against will statute, that allows a spouse who has been excluded from the other spouses will, to claim an interest in one-third of the estate of the deceased spouse. I am not sure if your mother has passed or not but it sounds like all of you should consult with an attorney.

 

Will unsupervised probation show on a background check?

Q: My husband was accused of animal neglect but the lawyer made a deal of entering a non guilty plea if he is on unsupervised probation for 90 days and does 40 hrs community service. Then the case will be dismissed totally. The problem is that he applied for a job before this happened and is very close to getting hired. Will this show up when they run a background check. If this is anything wrong in the background check he will not get the job.

A: What your husband’s situation sounds like to me is that he went in front of a District Justice and his attorney negotiated a deal where the case stays at the District Justice level and gets withdrawn or bargained down to a summary if your husband does what is asked. I have no idea whether he was charged with a misdemeanor, felony or summary from what you write. If charged with a misdemeanor or felony and processed when arrested, he has an arrest record for what he has been charged with. Therefore, it is on his criminal history. Once the case is dismissed, he can expunge his record. If he was only charged with a summary offense, there will still be a record of all the paperwork filed at the District Justice level. Anybody with access to the PA State Police record system will be able to find this information. My suggestion is to seek an expungement of all the records once his case is dismissed. You will need an attorney to do this for you.

 

Should I open a second account to avoid a creditor?

Q: Is it wise to open a separate bank to avoid unpaid bills if a creditor attempts to put a freeze on your (spousal) account? I am in the midst of attempting to settle a debt with a creditor; I know it is a possibility for them to freeze my bank account; but I also know they are unable to garnish anything from it because it is a spousal account. I am wondering if it is wise for me to open another account and have our money moved to that account so we would be able to pay our bills in lieu of the process of them freezing/unfreezing the account?

A: Talk to a consumer attorney first. You need to determine if you even need to pay this debt or should pay this debt. If you have been dealing with a creditor collections person, you may have been misled and bluffed. No creditor can lien personal or real property or garnish wages without giving you notice of suit, suing you and getting a judgment. As far as opening the new account, it may be a logical short term strategy, but not for the long term. If there is a judgment, the creditor can find this account and you could commit fraud by moving accounts to avoid collection.

Can my brother challenge my Power of Attorney?

Q:  I have POA for my mother, and I am the executor of her will. When she sold her home, (she lives with my husband and I) we split a home. All 3 of us are named on the deed. My brother is wanting the house to be listed as part of her estate. Can he take us to court to make that happen? We intend to buy out moms half when we all move there when I retire in 5 years. For now it is a vacation home.

A: My thought would be that he could challenge any transfer done by you via the POA or by mom when she was under your care. But, he would have to prove that she was incompetent at the time or under undue influence or coercion. This is hard to prove and any attorney he may speak with will advise him so. These types of allegations need to be proven by clear and convincing evidence. I do not have all the facts here and am not entirely sure I understand your situation. I highly recommend that you speak with an attorney with whom you can share all of the information.

Can I have a misdemeanor or felony expunged?

Q: I have a question about expungement in PA. I was reading a new bill that is going to be voted on in PA that will allow most misdemeanors and felonies to get expunged after five years. My question is what happens if you commit a crime and then commit another crime within the five year window. You then stay clean for 5 years can you have both offenses expunged. Also if you have committed more than one crime at the same time can you have crimes that can’t be expunged along with ones that can. Can you have the crimes that can be expunged removed leaving the ones that cannot for the same offense?

A: The bill that went before the state senate in 2011, proposed allowing misdemeanor 2 and 3 crimes as well as summary offenses, be expunged after 7 years of crime free behavior for the misdemeanors and felonies and 5 years for summaries. The only portion of the bill that passed was the provision applying to summary offenses. Currently expungement of summary convictions after five years of arrest free behavior is the current extent of expungement law. Recently, a bill made it through the PA Senate that will permit the expungement of misdemeanor 2’s. This Senate bill must be confirmed by the house then signed by the Governor. This has not happened yet. There is a lot of misinformation being published about this bill. I would wait until the bill becomes law then consult with an attorney.

 

Lawyer ignored us. Do we have a case?

Q: My fiancé took a plea 3-7 for theft and person to possess a firearm. We had been trying to contact his lawyer since October when he took the plea. The gun was mine and lawyer promised all kinds of stuff but hardly spent any time on our case or with us even missing court dates. When my fiancé took the plea he was told he had no other choice and that he had to say he spent enough time with lawyer and was satisfied or he would go to trial lose and get 20 years. Well, after taking the plea we tried to contact the attorney numerous times. His office phone disconnected and cell phone calls were ignored. He was supposed to be requesting my gun back as well as my fiancés personal possessions that were taken by police. The lawyer (which we had suspected) was just arrested for drug delivery and distribution. He has a case against him with the PA Disciplinary Board. What are our rights now?

A: If it is the intention of your boyfriend to withdraw his plea and get back in to court, there are two options for him. A direct appeal to the Superior Court within 30 days of sentencing or a Post Conviction Relief Act Petition (PCRA), which must be filed within one year. I would consult with an appellate criminal defense attorney as soon as you can. If any missed deadlines for appeals can be attributed to the lawyer’s problems, it may work to your boyfriend’s advantage in regard to appeals under a theory of ineffective assistance of counsel.