Category Archives: Blog and FAQ

Are most case still negotiated up until day of trial?

Q: The commonwealth has filed multiple charges against someone and have gone through all pre-trial phases of the process to the point that a jury trial is scheduled in criminal court. There were some negotiations that took place during the pre-trial process. The defense refused to plea. Now that the DA’s office will have to prepare for the case. Is it still typical that there are negotiations? Or once the case is prepared for is it more likely that it goes to trial? I know there is no concrete answer to this just curious of what the odds maybe? (South Park, PA)

A: Plea agreements have even been entered during a trial. Yes, a negotiated settlement is always a possibility no matter if the Commonwealth has prepared their case and have their witnesses under subpoena.

Can I get my warrant changed to a summons?

Q: I just caught two felony counts of possession with intent to deliver. I’m on probation for robbery but no probation violation was filed. Is a summons a possibility or am I guaranteed arrest? (McKees Rocks, PA)

A: You really need to discuss this with the lawyer who is intimately familiar with your case. However, I can offer this. Yes, it is possible to turn the new active warrant into a summons. You will need to have your attorney bring you to a Common Pleas Court Motions Judge on the warrant and have it vacated and bail set. However, there is a problem with this. By the time you get to court, the probation warrant may have been filed. Once in court before the Motions Judge, you could be detained on the probation warrant and escorted to the Allegheny Iron Hilton. All your time incarcerated from that point will then count toward the probation violation, not your new case. You will not be able to make bond on the new case until either your probation violation judge conducts your probation violation hearing (which is held after your new case is disposed of, or your detainer is lifted. A detainer can be lifted through the process of your attorney filing a written motion and convincing your probation judge to let you back on the street even though you were arrested for a new felony drug case while on his or her probation for robbery. As they say, you are in a pickle. Save money for your attorney.

I have a preliminary hearing and have not been arrested or arraigned

Q: It’s been since 12/28/2017 and I went to court on 2/02/2018 and they continued it till 02/14/2018. I’ve never really be arrested fingerprinted or had a bail set for this case never had my rights read or signed them for that matter. This is not my first or second run in with the law I just don’t know what’s going on. I work full time but I can’t pay a lawyer straight out but I can do payments if someone is willing to work with me. I just need help. (Pittsburgh, PA)

A: If you have a pending Preliminary Hearing, I assure you, you have been arrested. You were likely arrested via summons whereby the charges and a notice to appear were mailed by certified mail and regular mail to your known address. I refer to this as arrested by mail. The continuances of your case, as mentioned, is not unusual. The police do not have to read Miranda rights to you, like on TV, unless they interrogate. Not many criminal defense attorneys take payments as generally, criminal defendants are not reliable pay. However, there are some that do. Talk to as many lawyers as you can-you may find one needs business and will negotiate. Timing is everything.

Mother in a nursing home. Can her guardian sell our house?

Q: I have lived with my mother my whole life. I have cared for my mother the last 15 plus years. My brother had power of attorney though and put her in a nursing home 20 months ago. She is getting low on funds and the guardian wants to sell her house. I am not on the deed, but left the house in her will. Can they sell her house if she needs Medicaid? Can they wait until she passes and then sell her house? I was told that she can still own a home and be on Medicaid and sell the house after her death to pay back Medicaid.

A: You may be OK, but I cannot answer this without much more information. It sounds like her liquid funds are depleted and now it is necessary to sell her home to spend down to qualify for Medicaid. Her guardian may in fact have a duty to do this. It would be good to know if she is considered able to return home. Another thing for you to consider is what was referred to as “undue hardship” under DPW (now DHS) rules. This applies if you have lived with your mother in the home as her caretaker for a two-year period prior to her hospitalization. If so, the home may be excluded as a Medicaid asset, at this time, and you could remain residing in the home.

How can I get power of attorney revoked?

Q: My mother has her boyfriend as her power of attorney. She has become ill but can very much speak on her own behalf and make her own decisions. The boyfriend is not allowing her to have a choice in any decision from what clothes she needs to wear to which credit card to use for a purchase to what she feels like eating for breakfast. He speaks to her as if she is a child and threatens to take things away if she doesn’t do what she’s told. I need to know what steps come first in this case for me to follow. (Pleasant Hills, PA)

A: More information is needed for me to understand the entire picture, but I can give you some general advice. A Power of Attorney can be revoked in writing by the Principal. If your mother is competent, she can sign a written revocation of the POA and have the revocation delivered to any financial institution, hospital or entity in which the POA may be on file or who may have relied on it. It needs to be your mother’s wish to revoke the POA. If she is conflicted because of her relationship with this man, you may want to investigate other measures, such as a guardianship. If that is the case, I suggest that you take her to an attorney and if she resists, consult with one yourself.

Property in both of our names

Q: My boyfriend threw me out of the house and said that the property is his now because I traded him a car for it. This is not true, it never happened nothing is in writing. We both made payments on the mortgage and taxes. How should the court handle this situation? (Pittsburgh, PA)

A: Whoever is on the deed owns the house. If your name is not on the deed and his is, you don’t have claim unless you are married to him. If you are on the deed with him as an owner, he cannot remove you from the deed without your signature. More information is needed-is the property held as joint-tenants with right of survivorship or as tenants-in-common? Is there a mortgage? I suggest you speak with a lawyer.

Whom should I contact regarding a civil judgment?

Q: My ex-husband signed for a summons for me in 2012, but never told me. I did not respond due to being unaware, and a judgment in the amount of $1094 was placed against me for a credit card debt in May 2012. He received the notice of judgment, but again, never gave me the papers or even told me about it. I just found out about this, and I don’t know who to contact to arrange payments. Should I contact the attorney who sued me? And is it likely they’ll accept payments, because I cannot pay the amount in full at this time? (Jefferson Hills, PA)

A: That is unfortunate. If the judgment was already taken, your options are few as far as legal remedies go. You likely would have to pay an attorney to file a petition to open the default judgment. This can be done but the legal fees involved will likely exceed $1,094.00. If you owe the money your best bet would be to contact the attorney who filed the complaint and work out a payment plan. Beware of interest and legal fees tacked on. If you explain what happened, he or she may reduce the amount added on to the judgment. Good luck.

 

Medicaid Estate Reimbursement

Q: My mother died at 66 years of age without a Will. We were not going to open an estate because there were no assets. However, I found out my mother was the beneficiary of my grandmother’s insurance policy valued at $22,800. This was turned over to PA Department of Treasury, unclaimed property. For us four children to claim this life insurance, we must open an estate. However, in reading small estate law in PA, Medicaid needs to be put on notice if she received it. None of us knew of my mother’s personal affairs as all of us were estranged from her so it is possible she received Medicaid. We are unsure if it is worth trying to collect money from my grandmother’s life insurance that my mother was the beneficiary. Without the policy, my mother died without assets. Is there any advice you can give on what we should do in this situation? (Pittsburgh, PA)

A: Whether you proceed under the Small Estate Petition statute, or file for a grant of Letters of Administration, the Department of Human Services of PA must be notified. They will respond as to whether the decedent received Medicaid and if so the amounts they seek to recover under Estate Recovery. Under the PA Code, section 258.3 (Estate Recovery), life insurance proceeds payable to a decedent’s estate are subject to the Department’s claim. Life insurance proceeds payable to a beneficiary are not subject to the Department’s claim. The problem here is that this policy was not owned by your mother. She was a beneficiary of the policy who did not claim her proceeds for whatever reason. The proceeds turned in to cash after grandmother’s death. Had it been your mother’s policy, and there was a named and living beneficiary, I think you would be in the clear. The other concern is that since the proceeds have devolved to unclaimed property and lose their identity as insurance proceeds, they are viewed as cash. I would not throw in the towel at this point. I do not know the definitive answer on this without doing some research. You may want to consult with an estate attorney to see if it is worth pursuing. If an estate is opened and Estate Recovery files a claim for the entire amount, the estate can pay preferred estate expenses before paying Estate Recovery. These would be reimbursing family members for funeral expenses advanced, filing fees, attorney fees and an executor fee. It may be worth it. The attorney and the executor will earn a humble fee but perhaps someone who had no hope of being reimbursed for the funeral, which can be expensive, can now be paid.

Can I create a living trust or will with my mother’s POA?

Q: My wife and I have been resident caregivers for the last six years of my aging Mother of 90 years of age. She assigned me as her Durable POA approximately seven years back. She is now mentally incapable of making decisions and is approaching hospice care. I would like to designate who and where her final assets (Home and less than $150T cash) would go upon her death. There are siblings involved. She has stated to us in the past how she wanted her remaining assets to be divided. Is her POA within my scope of authority? (Mt. Lebanon, PA)

A: I suggest a consultation with a lawyer. Generally, a Power of Attorney does not allow an Agent to create a trust or a will for the Principal. However, if the Power of Attorney you reference contains the appropriate powers, you may be able to set up trust or similar accounts which will achieve the result you are looking for. I would take the POA to an estate and trust lawyer for review.

Statutory Rape?

Q: I’m 16, my possibly soon-to-be boyfriend is 19. Almost anywhere we research or read up it says, 16 is the age of consent and it is legal if I would commit a sexual act (such as intercourse, oral sex, etc.) with him. He therefore won’t be charged with statutory rape. But, there are other websites and forums that say I can only have a sexual relationship with someone of the age 16 and 17 for it to be legal? Could someone help me out? I wouldn’t want to get him in trouble if we would do anything. (Pittsburgh, PA)

A: Under Pennsylvania law, people ages 16 and older can legally consent to sexual activity. The only crime he could be subject to for having consensual sex with you would be Corruption of Minors, given the fact you are a minor and he is an adult. This would require your parent or guardian going forth to file charges and you being a witness or providing statements to prove the case there was sex. My advice to both of you would be to wait until you are 18.