Category Archives: Elder Law

Can my sister force my disabled sister out of the family home?

Q: My sister is disabled and living in our mother’s home in Wheeling, WVA. My mother now resides in a senior living facility. My other sister wants to kick my disabled sister out, but she’s on disability and can’t afford housing. She claims that they need to sell the house to pay the $500 monthly facility cost. Please advise. (Pittsburgh, PA).

A: You need to get to a WVA elder lawyer who is versed in Medicaid and SSI law immediately. Every state manages it’s Medicaid program differently. However, my thought is that you might apply for Medicaid now and be able preserve the home if under the WVA Medicaid there is an exception for a disabled child living in the home, or a child living in the home who was serving as a caretaker at the time of the institutionalized parent’s application. Some state’s Medicaid rules have such provisions.

Elder Fraud? How to get someone to repay loans given to them by my father?

Q: My 70-year-old service disabled veteran father loaned money to a much younger person who he thought was a friend. That person has a failing business and asked my father for multiple loans, over a year or two, often promising to pay it back the following week. He has never paid back one penny. The loans total $23,000. At the time of the loans my father was heavily medicated for multiple health issues and was not thinking very clearly. The person that requested the loans does not deny that he borrowed the money and has even signed a handwritten document showing the total, however, he has made no effort to repay any of it. He owns a house, land, vehicles etc. that could be used to pay my father back. I’m trying to figure out to proceed. A small-town lawyer told my father that not much could be done. That even if the court ordered him to pay he still might never get it. Any advice you can provide would be much appreciated. I just don’t know where to even begin.

A:  Much more information would need to be know if it would be worth suing this person or not. A lawyer would need to know if this person held any property of value in their own name. If they did, it might be worth suing to obtain a judgment. The judgment could then be executed on the property which could be seized and sold off to satisfy the debt. The problem is that many people are not worth suing because they have no property held in their name only or what they do have is mortgaged or already encumbered by a lien. For example, their house is held in husband and wife name, or their vehicles are also held with a spouse on the title. Both house and vehicles could also be encumbered by a mortgage.

How can my mom disown my toxic sister?

Q: My oldest sister has guardianship in her home in Florida over my mom without mom’s knowledge of what she got it for. Mom’s 89 and in good health, she’s begging to come home and NOT HAVE TO LIVE WITH MY SISTER. (Monroeville, PA)

A:  Law’s pertaining to guardianship are different for every state. Generally, if there is a court ordered guardian in place, it takes a court order to remove the guardian. To do this, you will need a lawyer to file a petition. Consult with a FLA elder lawyer.

Where to start in a suspected case of fraud for elderly parent?

Q: Mother is elderly living in a nursing home. Severe dementia, however not ruled as incompetent by a court (because it was never an issue before…). Relative in another state passes and evidently my mother was a beneficiary to her life insurance policy. When this relative passed, they sent paperwork to my mother to file the claim. My brother (who is estranged from the family but does visit her) somehow got this claim information. No one else, including myself, knew anything about it. He files the claim, gets her to sign it, a check is issued. I learned of this by finding some random paperwork in her room and researching. After talking with the insurance company and providing my POA they tell me the check was cashed BY HER (I saw a copy, it’s indeed her signature) to a bank account I know nothing about. My assumption is that he ‘added’ her to his bank account and had her deposit the check in it. I called the bank, they won’t talk to me without a court order even with the POA. I know crimes have been committed, but I’m not sure where to start. APS? Police? If she signed it ‘willingly’ is there even any crime since she is not ruled incompetent by a court?

A: Calling Adult Protective Services and the police are good starts. Also, as soon as possible, get an opinion in writing from her doctor that states at the time the check was signed she was incompetent. If you cannot get any resolution through APS or the police, hire a lawyer. The lawyer will determine what actions are necessary to have the money returned. It could be as simple as a letter to your brother. It could be more protracted and require court action and a court order.

Can I sign my father out? What are my rights as POA?

Q: My father was hospitalized at a local hospital for pneumonia and a urinary tract infection and insomnia. He was taken off his dementia and depression medication and all his meds. They gave him sleeping pills to sleep for 2days. They told us they could not put him back on his dementia meds because they did not have geriatric psychologist on staff so we had to transfer him to another hospital so we did two weeks-ago. All they have done is put him on new medication. Which he was fine. Today I had made arrangements to have him discharged at 3pm, Early this week he had intestinal virus there that I found out 4 other patients had now they think he has another UTI. They tested him for it on Tuesday morning but have not given him any medication for it. They had made plans to orders melds for us. At 1:30 today they called and said they could not release him because they did not have results for UTI. What are my rights to sign him out of there with our Power of Attorney and get his new medication prescriptions? Personally, I think it is a numbers game for this hospital because they lost all their patients this week and only have six patients and many available beds. Please help!

A: If the Power of Attorney authorizes you to admit and discharge him from a hospital, you should have no problem. If it does not, you should ask the hospital if you, with your next of kin status, can do so. My thought is that if you are acting as next of kin, you should be able to do so. You should not have him discharged without a sound medical plan in line such as another hospital or a doctor who can immediately assess him and admit him.

Should I have my father as POA taken off my accounts?

Q: I’m 53 years-old and live in Pittsburgh PA and have recently had my 87-year-old father listed as POA on both of my investment accts (Roth IRA and TOD) at NY Life Securities so he can buy and sell funds on my behalf without me being directly involved. I’m now wondering if that was the wrong thing to do in regards to the possibility of a nursing home considering my investment accts, in part or whole, as part of my father’s assets if he were to ever end up in a home. I’m sure I also have him listed as POA on my bank accts too. Is this OK or could this potentially cause me a problem and I should remove him as POA on all my accts? If I should remove his POA from all my accts, will these accts now be subjected to Medicaid’s 5 year look back period? Thank you in advance. (Jefferson Hills, PA).

A: There is a difference in having another person on your accounts as POA as opposed to joint owner. POA status allows them to access the account in your place, such as writing or depositing checks. Being on the account, as joint owner, means that the person has equal ownership rights with you. If your father is a joint owner, yes, this could present problems if he ever needs to apply for Medicaid. These accounts could be considered a countable asset for Medicaid. If he is a joint owner, I would transfer the account into your name and keep a record of everything you do. If the issue ever arises with Medicaid, you can successfully defend any claim if you can show that the money used to establish and maintain these accounts was yours and your father was only put on the accounts for estate planning purposes. If is status is just as POA, I do not believe you have any worries regarding Medicaid.

Elder neglect penalties?

Q: What is the penalty for someone who didn’t take care of their elder spouse such as withholding nourishment, and not properly helping like withholding hygiene for the person? This was the main cause that lead to the person’s death.

A:  More information would be needed. If this is an extreme case of failure to nourish, which is medically/forensically related to the death, the charge could be homicide. I would review all the details with a lawyer or contact the police.

 

How do get mom’s house changed to my name?

Q: She is elderly. We can’t qualify for needed services because of the house. I can’t afford to pay for a nurse or provider. I am barely making ends meet with medical bills and all the essentials needed to care for her.

A: The legal procedure to transfer title from her to you is easy. However, whether it is advisable with her circumstances is a decision that can only be made with advice of counsel. If there is any potential that she will need to apply for Medicaid, such a transfer can make her ineligible for Medicaid. Plus, if you have lived in the house as her caretaker for two years prior to her institutionalization, you may be able to remain in the home after her passing. Also, if you transfer the home into your name only and you do not reside there, her real estate taxes may increase. She will lose her homestead exclusion and possibly any senior citizen’s discounts.

Should we quit claim our house into a trust?

Q: My wife and I are in our late 70’s We have 3 sons and wish to avoid probate and estate taxes. Is a living trust with a quit claim deed proviso a safe way to give property to children? If so, is there a waiting period?

A: Do not do this on your own and seek an elder law attorney’s advice. Many more facts need to be known. A revocable trust may be a way to pass both real and property on to your children, but it is not good in every situation. If the waiting period you refer to is the dreaded 5 year Medicaid look-back, a revocable trust will not protect assets from Medicaid. You would have to transfer them into an irrevocable trust which is quit a serious decision to make as you lose total control of the asset. If your sole goal is Medicaid issues, you can just deed your real estate and transfer your personal property to your children, and wait five years, but such transfers could have significant tax consequences on your children.

How can I locate a trust?

Q: My niece’s mother died in 2008 and supposedly there is a trust for her once she reaches age 27. Her dad just died this past October, and her stepmother is of no help to her. Also, she no longer lives in Michigan where her parents are from. Is there anything I can do to track it down to help her? Thank you.

A: There is no central registration or central repository where these are filed. IF this trust instrument was filed, it would likely be filed in the jurisdiction where the trustor/settlor had residency. You can start by searching the probate court in the County Department of Court Records. Often, real estate is part of a trust. Therefore, you could also check the County Recorder’s office (where deeds are filed) to see if a deed was filed in the name of the trust. Also, sometimes trust notices are advertised if the trust instrument was filed and real estate transfers are listed in legal newspapers and papers of general circulation in the county with jurisdiction. You could call the legal journal and main newspaper for that county and see if they have an archival data base. If it cannot be located, you might try to call lawyers in the area to see if any of them drafted the trust. I get calls occasionally from people in search of a lawyer who may have drafted a loved one’s will. It might be hard to find but you may get lucky with just a few calls.