Category Archives: Elder Law

Can the government take my parent’s home?

Q: If my parents sell their home to their children within the 5 years? How does the 5-year issue work in Pennsylvania? (Munhall, PA)

A: PA manages its Medicaid program through the PA Department of Human Services. Under Medicaid regulations, any transfer of an asset by a Medicaid applicant for no consideration (i.e., gift, $1.00, under market value, etc.) within 5 years preceding a Medicaid application, can cause the applicant to be ineligible for Medicaid benefits to the extent of the fair market value of the asset transferred. You say your parents sold the home. If it was a legitimate sale for fair market value, it would not rule your parent’s ineligible. If the proceeds of the sale went to your parents for their living expenses, which should be easily documented, there should be no problem. I suggest consulting with an attorney to review this sale before you do it.

What documentation do I need to obtain a Short Certificate?

Q: Both of my parents have recently passed. first my mother, then my father within an eleven-day span. I am the executor of the will and want to proceed in filing out whatever forms need to be filed and to carry out the will. I just need to know exactly what information to take to the courts to obtain the short certificate and be named legal executor. The only assets that my parents have left is a bank account with about $3000 in it as they were both in an assisted living facility before there death. (Pittsburgh, PA)

A: If there is only one asset as you mention, and it is in your parent’s name, you will not have to open an estate. Per statute, the bank can release less than $10,000.00 to certain next of kin if a paid funeral receipt is produced. There will be inheritance tax owed. Also, you need to be aware that if your parents received Medicaid, this money may not be free and clear to disburse. If this matter is a simple as you state, an attorney can assist you in getting the money and prepare an inheritance tax for you at a modest fee.

What are the inheritance laws if parents give house to child under 18?

Q: My mom is trying to buy a house soon. She wants to hand down the house to me and my brother in the event something happens to her. Since I’m 26 and he’s under 18, how does inheritance tax and exemptions work? If he were to be still under 18 in that event, would he legally be able to accept it? (Pittsburgh, PA)

A: Mom handing over a home to a 26-year-old and a minor may not be advisable. Additionally, I do not believe a minor can hold title to real estate. Your mother should consult with an elder law attorney who can assess her entire financial and personal situation and recommend the best options for her. Perhaps putting the house in a revocable trust is beneficial, but no one can tell without more information. The inheritance tax rate for children is 4.5% and it is practically unavoidable unless mom transfers the house out of her name altogether. Whether the potential consequences of doing that is advisable given the low rate of inheritance tax would be her decision. Additionally, not knowing the entire picture here, your mother should be advised of Medicaid implications with such transfer if she will potentially need Medicaid coverage in the next five years.

What form do I use?

Q: What form would I use to request outpatient treatment for my father who is incompetent?

A: More information is needed to fully advise you. However, most people who need to act on behalf of another person, require a Power of Attorney. However, if the person is not competent to sign one, this will not work. In that situation you may need to become his legal guardian through a court proceeding. If a service provider will act on your request without either because you are next of kin, you may not need to be guardian for that specific purpose. Ultimately however, you may need to be appointed as his guardian.

Can I record conversation to prove elder abuse?

Q: We suspect our feeble but mentally sound grandparent is being emotionally and financially blackmailed by a private home caregiver who has recently come onto the scene. The grandparent has become somewhat secretive and it has been very difficult to meet this “caregiver”. They have begun a legal contract together regarding care of our grandparent. Upon death the caregiver will receive an overly generous financial gain. There are several requests that the caregiver has made that are illogical and very concerning to have in the contract to gain legal power over our grandparent. Our grandparent has started to withdraw from family since this caregiver has come along. The grandparent is acting out of character & trusts the caregiver. Our grandparent has already been influenced by the caregiver in a way that has put their health/life at risk. The caregiver does not like to meet with family to discuss their arrangement. There are many red flags at this stage with this relationship and we are sick with worry. Can we record conversations without consent to help prove undue influence as it is so difficult to find other proof at this time How else can we collect proof regarding undue influence of an elderly person? (Pittsburgh, PA)

A: Not unless you want to take the risk of the caregiver filing criminal charges against you. PA is a two-party consent state. I suggest calling Adult Protective Services and have them do a home visit to assess the situation. Your grandparent can do as they wish if they are competent. However, if the caregiver is becoming an heir and receiving more than just compensation for services, something is wrong and there is a legal course of remedy based on the doctrine of undue influence. You could also make the local police aware of the situation. Some police have training in elder and may have suggestions as to what help they can provide.

Can girlfriend take father for medical treatment?

Q: I am my father’s medical power of attorney. His girlfriend is trying to take him to get medical treatment without me being present or notified. What can I do and what should I do? (Penn Hills, PA)

A: If you have a Medical Power of Attorney which is fully complaint with the law, and you are the named Agent, you have authority to handle his medical needs and no one else. As mentioned, you need to get a copy of this document to his doctors, the hospital and all his medical providers.

Can Medicaid recover funds from an estate of a person who died 2 years ago?

Q: My Grandmother passed in 2016. She utilized Medicaid for the last few years of life, including staying in a constant-care rehabilitation facility and hospitalizations for a stroke. After her death, an estate was opened. We reported to the state an estate value of $9,000. In May 2018, a distant cousin passed, and the remainder of their estate was disbursed to his next of kin. A check for $80,000 was made out to the estate of Grandmother. In June 2018, the state attempted to recover Medicaid expenses – $230,000 worth. They requested a full payment of the value of the estate, which was reported as $9,000. This was paid. In that payment, the state mentions that they could attempt to recover additional money into the estate. Can the state now – 2 years after death – come for the additional inheritance that was disbursed in May 2018? Or is that money safe to disburse from the estate to the living next of kin? (Upper St. Clair, PA)

A: It is true Medicaid can recover funds payable to an estate after the estate closes, or which are discovered later for whatever reason. I find it strange that there was an asset payable to your grandmother after she passed. If your grandmother died in 2016, it would seem to me that any inheritance from a distant cousin who dies in 2018, would “lapse” under PA probate law. Meaning, generally, a dead person cannot inherit money. Their inheritance is deemed to lapse or be void upon their death. In that case, their inheritance passes to an alternate beneficiary named in the will, or an alternate beneficiary under PA intestate law if there is no will. However, I understand in fact the payment to the estate was made. I would be careful here and have an attorney examine the payment from the asset to see if it can possibly fit into

Can my mother and I sell her home and dissolve the life estate?

My mother is 89 years old and developed mild dementia and heart disease. The doctor does not want her to live by herself, so she has moved in with me. We set the life estate up about 5 years ago after a lawyer assured us it was the right thing to do. I am the only surviving child and do not plan to put mom in a nursing home and will use hospice if needed in the future. I do not want to rent the property because it is about 100 miles from me and would be more trouble than it is worth. Can I sell the property since I am providing my mother with a place to live and am also her caregiver? (Baldwin Borough, PA)

A: I would need to know is the life estate in the deed or a trust and look at the documents. If in a deed, does the life estate terminate upon conditions of her death or her being unable to live in the home independently? If in a trust, the trust will have similar conditions which constitute the ending of the life estate. Who does ownership pass to when the life estate conditions have been fulfilled? If one of the conditions of the life estate terminating is her being unable to live in the home independently, then that condition has been fulfilled and you should be okay. However, you should review the paperwork with attorney for a more definitive answer.

Can I get emergency medical power of attorney for my brother in Tennessee?

Q: I’m in Pittsburgh, my brother is in Nashville. My brother had end stage cirrhosis of the liver and had to have emergency surgery that left him with a permanent ileostomy. He detoxed at the hospital, but he is a chronic alcoholic. His mind is confused, and he is in denial about his entire situation. He has discharged himself several times against doctor’s orders and is in very grave health. He needs to be admitted to the hospital and stay there for medical care. The hospital told me they do not do any type of psychiatric evaluations. (Pittsburgh, PA)

A: You need a lawyer who practices in Davidson County, Tennessee. An attorney who does hospital visits would be great. If you brother is competent and willing, the attorney can prepare a POA for your brother to sign. If your brother is not competent to sign documents, the attorney can advise you on the next step which would either using the mental health system to have your brother committed if he is a danger to himself or others, or if necessary, filing a petition in court for you to become his guardian. You really do need an attorney in that location. You can call the county Bar Association to see if they have a lawyer referral program. Good luck with your situation.

Can we commit our alcoholic dad?

Q: My dad is 59 years old and is a chronic alcoholic to the point he is starting to lose his mind. We think he has brain damage from the alcohol. We don’t know what else to do. He’s now homeless never wants to eat and doesn’t want to go to the doctor. Basically, he wants no help he says he wants to die. We know he is very depressed and he is not mentally right anymore. He raised us alone after my mom passed away. I don’t want him to die like this. So how can we have him involuntarily committed? He is a danger to himself. (Pittsburgh, PA)

A: If his behavior meets the standard under Section 302 of the PA Mental Health Act regarding being a danger to himself or others, you can probably commit him. There is a plethora of free public information on the subject. You can try calling an organization called “Resolve” for help. You can also call a hospital, the police, or even legal services for a referral. Generally, they need someone to be the petitioner, which can be you if you are willing. Based on what you are saying, he may not meet the standard under 302, but it may be worth a try. You should also call Greenbriar, Gateway and Pyramid. They are drug and alcohol programs with in-patient and out-patient programs and may offer advice. If he can be persuaded perhaps a 28-day detox and in-patient follow-up can save him. Good luck.