I need Elder Law advice on moving mom’s assets.

Q: I am moving all my mom’s assets into Irrevocable Trust for Medicaid nursing home care purposes. I’m aware of 5 yr look back period. NC Medicaid worker informed me my mom’s $1300/month is too much to qualify for in home help but, nursing home help would be possible. Mom is healthy now but, SHE wants to plan for the future and so do us kids. So protect as much of her assets as much as possible should we place all of the following (IRA, paid for House, Life Insurance Policy, a small Savings Account) into a Irrevocable Trust? We could set the trust up to distribute $700/month automatically to my mom every month making her monthly income $2000 and then, when/if need arises, apply for Medicaid to help cover the rest of the nursing home expenses.  Is this a workable plan? Thanks!

A: An irrevocable trust is one tool, among many that people use. If you are planning to move retirement plans into it, they need to be cashed out which often triggers income tax consequences which could make this move not advisable. To advise you thoroughly on this would require an in depth analysis of your mother’s entire situation including her complete assets, health, age, social security income, etc. I suggest that you meet with and Elder Law attorney to work on a blueprint as opposed to just doing this yourself.

Will transfer on death deed avoid Medicaid”?

Q: Will a Transfer on Death Deed protect my mother’s home from Medicaid reimbursement if it was filed over 5 years prior.

A: I am not familiar with what a “transfer on death deed” is. If it transfers title from A to B upon the death of A, then my opinion it would not preclude a Medicaid interest as it only transfers a future interest in the property which is completely revocable during life. Because of this the state will file a lien against the property. You should review the deed with an estate planning attorney versed in Medicaid law.

Will I have to register when under Megans law as a juvenile offender?

Q: I’m about to move to Pennsylvania to go to college and I’m a sexual offender that was adjudicated and not convicted. I was 17 dating a 13 year old and the courts charged me with rape because of age difference. I went to juvenile prison for 9 months what I’m wondering is Megan’s law states juvenile offenders registering is unconstitutional and I contacted them and they said they almost positive I won’t have to register anymore. (Leesburg, VA)

A: On December 29, 2014, In re: J.B., No.87 MAP 2014, the Pennsylvania Supreme Court struck down SORNA’s Juvenile Offender registration requirements as unconstitutional. Juveniles are no longer required to register in Pennsylvania, except if they are classified by the Court as a Sexually Violent Delinquent Child. This decision also includes Juveniles who are to register in another jurisdiction or foreign country.

Can I let unlicensed driver drive my car?

Q: Car and insurance in my name being driven to work by someone without a valid license. What happens to me if he gets pulled over .He is in process of getting his license back, the deed and insurance are in my name. Will only he get in trouble if caught, or will I also get in trouble?

A: In PA if you have knowledge that a person has no driver’s license-whether suspended or they just don’t have one, and you allow them to operate your motor vehicle, you can be charged with a summary motor vehicle offense. I have seen it happen. In addition, read your insurance policy to make sure your carrier will not deny coverage if such person is involved in an accident

Should I liquidate her assets?

Q: I have a 96 year old Grandmother. I am last living relative. Recently removed from her home where she was living alone in bad conditions, 600 miles away from me. I now have established temp guardian and custodianship, permanent in 3 weeks, and getting her in nursing home. Her house is in a bad neighborhood and now that people know it is vacant, it will be robbed and badly vandalized by the time the court date arrives. House is in bad condition inside and city is about to condemn but I had 2 people come out and prepare cash offers. The house is full of my grandfather’s expensive tools, etc. I hate to see that all go to thieves or be taken by the city. Should I try to sell everything and give her the money? I don’t live here and paying $100 hotel every night, don’t have much time

A:  I have had many clients facing this situation. If you feel you will need to apply for Medicaid funding for her in the near future you want to be careful with how you liquidated her assets. While it is true that the transfer of assets without fair consideration in the five years prior to Medicaid eligibility can lead to a penalty, the operative wording is “fair” consideration (fair price). My suggestion is to follow the advice of an attorney versed on PA’s administration of the Medicaid program. Generally, you can liquidate personal and real property as long as you do it for a fair price and keep accurate records-and keep her money for her, and not gift it to others. If you sell the house, get a few offers in writing, take photos and place the proceeds in grandmother’s account, for her use. Document the deposit. If you can get someone to appraise it before selling, do it. If you apply for Medicaid some day you may need to demonstrate to them that the sales price was fair. You can deduct the expenses from her account, but keep records and receipts. No one expects you to pay for all of this out of your own pocket. Reimburse yourself from grandmother’s account, but again, document everything including your hotel room, gasoline, movers, locksmiths, etc. As far as right now, you should remove the valuables from the house and secure the house by whatever means necessary-light timer, an alarm system, or even boarding it if you have to. In the meantime, gather the bids, and sell it. As long as you can feel confident you sold it for as much as you could get, given the bad area and condition of the house, Medicaid will probably understand, as long as you can document it. Again, find a local lawyer to advise on this before you start for some guidance. An attorney can advise you on any available financial tools to shelter some of her assets from Medicaid consideration.

 

What rights do I have being next to kin?

Q: My mom passed away when I was 18 years old, in Ohio. She had no will nor was she married, making me next to kin. My grandma voluntarily said she would pay for the funeral but later said she had rights to everything because she had to get her money back. Her and I came to an agreement that she would “supervise” everything so me and my four younger siblings could separate everything equally. I have no intentions of taking everything for myself. All my mom’s assets are in a storage unit in my grandmas name. I recently found out she was taking things out while I am away in Florida. What can I do when I get back? Do I have rights to demand it back and take everything out of storage if she tries to deny me access ?

A: It sounds like there was no estate opened. If there is enough value in this property in the storage shed or other assets to fight for, you have the right to become executor of the estate. Since she had no spouse, you as child are given preference over granny. You can then be in charge of the storage shed and everything else your mother may have owned. Yes, if granny paid the funeral bill, she needs to be reimbursed from mom’s estate. You may want to consult with an attorney so he or she can check if an estate was opened, assess the value of this estate and inform you of your options. Perhaps a letter from the lawyer may be worth the fee.

 

Will I get arrested for DUI?

 

Q: If I didn’t get cited or tested for being drunk, will I still get a DUI in the mail? See details below. I drove home (stupidly) from the bar the other night. After a mile, I realized I needed to pull over. Between being tired and having a few, I really just wanted to close my eyes for a minute in a parking lot. Next thing I know security is there and calls the state cops on me. The cops came and they never got out of their car. They asked me to get out and talk to them. I remember the cop taking my information, but I never signed anything, received a paper or even got tested in any way. No breathalyzer, no sobriety test. I did admit to having been drinking because I knew he could smell it on me. I told him where I had been. He asked if I did drugs. I said never in my life, which is true. Those are basically some of the only questions he asked me. He let me call my husband to pick me up. (North Huntington, PA)

A: Not knowing exactly what the police will say that they observed as to your condition, and going on your recollection, which is a bit vague, I certainly cannot promise you will be not be arrested. The fact that the police didn’t get out of the car to give you field sobriety tests, nor take you in for testing, leads me, if I had to guess, that you will not be charged with DUI. All you can do at this point is check your mail as if you are arrested, it will likely be by summons (in the mail). Whatever you do, do not voluntarily go to the police as some people do and make a statement.

Going to court for a second DUI but received a 3rd DUI.

Q: I am to go before a judge on my second DUI. However, I was arrested on new DUI, now my third, a few weeks ago. It’s not showing on the public docket. Will the judge know? I never called his public defender, will she know before the Sept. 3rd court date. It is stated no more continuances on the second. And now I have a third. Will I go straight to jail that day? And, the judge ordered me to take a CRN Evaluation and I haven’t done that yet.

A: If I understand you, you are asking whether a new DUI, for which you have been arrested, but not convicted of, yet, will be known by the judge you are to appear before, on a 2nd DUI? If that is what you are asking, this is what I can offer. This 3rd DUI for which you have not been convicted, will not factor into the sentencing guidelines, so, you can only be sentenced subject to the penalties of a 2nd DUI. Will the judge know about this 3rd pending DUI? Will it affect how the judge will sentence you? I do believe at sentencing the DA can bring it up if he or she wishes. The judge can give whatever consideration he or she wishes to and factor it into the sentence, however, the judge still must sentence within the guidelines of a 2nd DUI. Perhaps the judge will view you as someone who is out of control and sentence toward the maximum of the sentencing guidelines. I can only guess. The other way the judge may know about your new case is by looking it up on the UJS website on his computer as you stand before him. One would not like to think that judges do this, but they do it. I think you should talk to your Public Defender. My concern is that the judge may turn sour when he or she learns you didn’t do your court ordered CRN evaluation, and now you “catch” (as some of my client’s say) a new DUI. It probably will not happen, but the judge may revoke your bond and put you in jail. Again, call your lawyer and be prepared.

 

How do I help paralyzed senior in another state?

Q: His children are mistreating him. They have power of attorney. He lives with his daughter and her husband. They will not allow him to have company. After his nurse leaves, no one comes to check on him. He has a decent income. He just wants to live in assisted living, be around other people. They don’t take him out and he doesn’t eat with them. His grandchildren lives there and he hardly ever see them. He has no quality of life. His nurse is only company he has. He is in wheelchair, but it is just cruel the way they treat him.

A: This is a difficult situation. You could try to talk to the family if you haven’t done so. You could contact the local Department of Aging to see if they will do a wellness visit. Perhaps have him express his feelings of wanting to leave to the department of aging people in writing if he is not comfortable doing it in front of his present caretakers. Maybe, but doubtful, the local police department has an officer who deals strictly with domestic situations or with crime against the elderly. If such officer exists, you could see if he will visit your friend and talk with the family then talk to the friend in private. He could also sign a POA in favor of you if he agrees to do so and if you can somehow get it done with a lawyer going into the home. It seems that if this friend of yours really wants to leave, if he expresses his feelings, it can be done. The other option is to file for a guardianship over him which you really need to have legal advice before doing so. If you are not family, the court will favor family unless the family members are suitable.

Can I keep my parent’s house when they die?

Q: How do I keep my parent’s house if they die? My mother died over three years ago, and tonight I received word from the hospital that my father is not doing well. I know that the house currently has a mortgage on it, and that there is a little over nineteen thousand dollars left on the house. Unfortunately my father doesn’t have life insurance on himself, and the bank removed the GAP insurance he had through them. They did it after he said something about his health issues. I know that my parents would want me to keep the house, and I would like to know what I should do in order to keep it. Should I continue to make payments on the mortgage? If I do does it mean that I’m agreeing to paying all of their bills? I’m also asking because right now the house is my place of residence. I moved in to help with my father, and go to college, and now… To be perfectly honest I’m scared. Some help and information would be wonderful. Thank you.

A: You really need to talk to a lawyer. Ask around, some lawyer will talk to you for no fee or a modest consultation fee if you don’t have money. There are some issues here. If either of your parents received Medicaid, the house could be subject to a claim. However, there is an exception to their claim called “undue hardship” if you were living in the home as their caretaker for 2 years prior to their hospitalization. Don’t make statements to the hospital about your living arrangement until you talk to the attorney. Also, when your last parent dies, you personally do not inherit their debt. Their estate is responsible for their debt. You can keep paying the mortgage but do not sign any document from the bank in which you assume the mortgage. If you are the only heir of the parent, you can probably keep this house by if you can afford it. It will likely require opening an estate and paying inheritance tax. Again, explain all of the details to a probate or elder law attorney.