Category Archives: Elder Law

Can a person acting as POA remove a beneficiary from policies?

Q: My sister will NOT talk to me and behind my back put my mom in a nursing home. My sister went got POA health and financial from my mom. Now she wants me to pay half of all debts. My mom told me she put me and my sister as beneficiaries on her life insurance policies. Now that my sister is POA can she remove me as beneficiaries from those polices and not tell me? (Jefferson Hills, PA)

A: Under the new enactments to the Power of Attorney statute, effective January 1, 2015, an Agent can only change beneficiaries on a life insurance policy if specifically granted that power in the “Powers” section of the Power of Attorney document. Under the prior Power of Attorney Act, effective in the year 2000, an Agent may be able to do this if there is similar language giving such authority. Your question depends on when the document was signed and how it was drafted. You should get a copy and consult with a lawyer.

Can we pay ourselves for caring for our 90-year mother?

Q: Mom still lives at home. We have someone come in throughout the day but my three siblings and myself stay with her overnight and do 24 hour shifts on weekends. We’ve been caring for her for 3 years and have never paid ourselves because we didn’t know if we can do that. Also, if we are allowed, can we pay ourselves back? In the event she needs to go into a home and runs out of money and goes on Medicaid, will they come back on us to recoup the money that we paid to ourselves for her care? (Pittsburgh, PA)

A: Yes, as it stands now, if you have no written caretaker contract in place and you pay yourself as you go along, or try to pay yourself retroactively, this could potentially make your mother ineligible for Medicaid if she applies within the next five years. Medicaid would look at these payments as transfers for no consideration or fair value unless they are made pursuant to a written caretaker agreement signed by your mother if she is competent or by her Agent under a valid Power of Attorney.

With a power of attorney, can I evict my brother from mom’s home?

Q: My brother moved in with our mother to help take care of her 17mths ago. He didn’t have to pay any bills, grocery’s or maintenance in this time-period. She’s now in a nursing home. He said he can no longer care for her. Now he refuses to pay rent or help with the bills for the nursing home. He is living in our mother’s home and driving her car. He verbally said he would pay $500 monthly. I supplied him with deposit slips for this money to go directly into our mothers account to help pay for the nursing home. Can I evict him being I have power of attorney over our mothers estate? (Penn Hills, PA)

A: If your mother is mentally competent and wants your brother to stay in her home and drive her car, that is her decision, not yours. If she is incompetent, you can act in her best interest, if your POA complies with state law and permits you to manage her real estate. If so, you may have to evict him through court since he has been living there so long. You would start this process at a District Justice office. If your mother is receiving funding such as Medicaid, rental payments to her may disqualify her. I would review all the details with an attorney.

Can an elderly relative change their will if demented?

Q: My Aunt’s property was left to a nephew and his wife and family. Other family members have been talking to the aunt who has dementia and now she has changed the will. Is this legal? (Pittsburgh, PA)

A: Your aunt can only change her will by executing another one, a new will, which is in compliance with the law. Plus, she can only execute a new will if she is competent. Dementia does not necessarily mean she is incompetent. There are varying degrees of dementia. If she executed a new will and you are suspicious of the circumstances, you should review all the facts with an attorney.

What if I get slapped with a PFA because ex lies?

Q: She contacted my father stating I’m calling and texting her, threatening her and stalking her. None of this is true. I am working a full-time job have a girlfriend. This is being thrown on me and I’m innocent. I believe she is either upset or a close friend is doing this. What can I do to protect myself? (Munhall, PA)

A: Avoid her like the plague. Do not have contact with her in any form, not even telepathically. Save all communications from her-texts, calls, emails, Instagram’s, postings, snap-chats, etc., and lay low. Try not to go anywhere alone. Change up your routine-eat at different restaurants, drive another route to work. If anything happens, call an attorney. That is all you can do. Batten down the hatch and hope the nor’easter blows over.

Do I need a new deed now that my wife died?

Q: I recently lost my wife to brain cancer and our house is in both names. Do I have to do anything to remove her name or wait until I sell the house? She had no will or anything and wondered does everything just get put into my name as far as any belongings in the house? Wife’s family brainwashed our son who filed a false police report in hopes to have me arrested but because that did not work and DCP was called in, in-laws and son took me and wife to court while she was on hospice. I can’t trust them with anything at this time. They did not even visit my wife when they live a mile away and cared less about her after she was diagnosed with cancer 5 years ago. I now live alone in house but always think something can happen when I am not home. (Pittsburgh, PA)

A: In PA, deeds titled in the names of husband and wife are held as tenants by the entireties. This means that both spouses hold an undivided interest in the whole, as one. Unlike with joint tenants, where on tenant dies, and the survivor tenant inherits their half, the surviving entireties tenant still owns the whole as he did before, now only in his name. It is confusing but if your deed lists you as tenants by the entireties, or as husband and wife, you probably are now the sole owner. And generally, there is no reason to execute and file a new deed. A deceased’s spouse name can remain on the deed until the house is sold by the surviving spouse. As far as any other property held in your wife’s name only that was not real estate held by the entireties with you, there could be concerns. If she died with no will that left everything to you, then property held in her name only, passes in accordance with PA intestate (no will) law. This means that the first 30k of her estate passes to you, the surviving spouse, and the balance is shared 50/50 between you and children of you and your deceased spouse. As for your son and in-laws, you may want to consider getting a security system or a Pit Bull or Rottweiler, as a roommate.

How can I pass an interest in my house to my children if my wife is on deed with me?

Q: I recently refinanced my home and deeded it as tenants in the entirety with my second wife. I have two adult children. I would like to have my children have interest in the property if I die before my wife. What is the best way to do this as she has no immediate family and I do not want the property to go to the state upon her death. (Valencia, PA)

A: Consult with a lawyer with whom you can share all the facts. If the house is now titled by the entireties, as husband and wife, the entireties tenancy can only be severed if the wife agrees to sign another deed, one of you dies or by court order. As tenancy by the entireties, your wife will inherit it from you when you die, and it will not pass to your estate. Therefore, you cannot pass it to your children in your will. The only way to pass an interest to your children is to draft another deed. I cannot advise which type of deed will be best for your situation, but the options would be to execute a new deed with or without your wife on it. Your children could have a tenant-in-common interest with you or you and your wife, or joint interest with you and your wife. You could also do a deed to your children with a life estate in the property granted to your wife. If she has a life estate, she can live in the property until she vacates the property or dies, then her life estate is extinguished, and your children’s interest becomes free and clear. You really need to consult with a lawyer who can advise after understanding all the facts. Additionally, you should seek approval from your mortgagee whenever you change the deed if there is a mortgage or HELOC in place.

How can I get power over my mom’s finances if she is incapacitated?

Q: My mom has fallen ill. They put her in a coma. How can I take charge of her bills to keep her house going? There is no living will or power of attorney. She receives social security and pension checks. (Ligonier, PA)

A: If she is not competent to sign a POA, your only recourse is filing to be her guardianship. You should review all the details with an attorney.

My brother as former POA is not releasing funds. What do we do?

Q: My mother revoked his POA. He was refusing while fiduciary and now that it’s revoked continues to refuse her physical property’s return to her. She was deemed fully competent by her doctor. (Pittsburgh, PA)

A: If she is competent and has revoked her prior POA, your brother should not be acting on her behalf. If he is doing so and she is opposed, it could constitute a crime or be actionable in Civil or Probate Court. I would consult with a local WV lawyer. In the meantime, if this hasn’t been done already, send the brother a copy of the revocation by certified mail and make sure all persons or entities (banks, financial institutions, etc.) have a copy as well.

How can I be removed as guardian?

Q: I am permanent guardian of the person and estate for a 50-year-old adult son with mental illness. However, he can and has acted independently to get jobs and credit cards. It has become almost impossible to track his spending and I question if he is legally incapacitated. At I minimum I cannot handle the guardianship any more. I also receive no compensation for it. He is no longer under the auspices of the mental health system but is in jail with a potential mental health commitment for competency. (Pittsburgh, PA)

A: If you have been appointed guardian of his person and estate, you can petition the court to appoint a successor guardian. Unfortunately, you will need an attorney to do this. You might be able to find an agency to take over but without knowing more, I am not sure what agency would accept him for services. If an agency would step in, they may be able to handle petitioning the court to have you removed and replaced. The interest of an agency will increase if he is collecting disability or if there is some other source of income for him.