Category Archives: Elder Law

Can wife preserve half of couple’s savings from Medicaid?

Q: If a husband has Alzheimer’s disease, is it true that only half of a couple’s savings need go to memory care before Medicaid takes over? He is in a very nice memory care home but I am afraid we will run out of money and was told that when his half is used up he could go on Medicaid.

A:  It is somewhat of an oversimplification of the issues, but not far off point. Medicaid looks at the combined marital estate and as the community spouse (he is the institutionalized spouse) you can shelter the home and a share of the other assets. Under the guidance of an experienced attorney versed in Medicaid regulations, you may be able to shelter one-half or more of your marital estate.

Can my sister in law prevent me from visiting my mother?

Q: In September my Mother was moved from an independent living facility to my brother’s house. My brother is now working out of state. In November my sister in law told me that my mother really wanted to see me. I told my sister in law I would visit for a week and she said that was fine. In December in went to visit. My sister in law was very rude to me. I told my mother I might leave after 3 days and she begged me to stay. The next day my sister in law called the police and had me removed. I would talk to my mother after that and she always asked, ‘when are you going to come see me’? Six weeks ago, in April, I told my mother what happened in December and my sister in law yanked the phone from my mother, yelled at me, and hung up. I haven’t talked to my mother since. Can my sister in law do this? (Mt. Lebanon, PA)

A: If you truly believe there is elder abuse, you can call adult protective services and they may do a wellness visit. You really should consult with a local elder law attorney about the merits of you becoming your mother’s guardian. This would involve a court proceeding called a guardianship hearing in which you would petition to become her guardian over any other child in your family. A judge would decide who should be a guardian at the conclusion of the case. Your attorney would have to serve your brother and any other siblings, with a copy of the Petition for Guardianship and notify them that they have a right to come to court and argue their side of the story, prior to the hearing. Your mother would have to be given a copy of the petition and notified as to what was happening. It can be an adversarial hearing unless the family agrees who should be guardian, prior to the court proceeding. Again, you need to consult with a lawyer and review all of the facts.

If I get married will I lose my Medicaid benefits?

Q: When a 65 year old woman gets married can she lose her Medicaid benefits? My prospective husband does not make a good income.

A: Yes. Medicaid eligibility depends on income and resource and income and assets from one spouse can be attributed to the other spouse, in some cases. If you marry, your spouse’s income and resources could [but may not] cause you to lose Medicaid. Consult an elder law attorney to learn your options.

Need to set up trust for father so VA Aid & Attendance benefits are available

Q: Father is 84, has monetary assets. I need to know what type of trust to setup. He has Aid & Attendance VA benefits. A trust needs to be setup so he qualifies. He is a WWII veteran. I have all of the paperwork and just need to know what type of Trust to setup so he is not disqualified due to his assets. He has a home and car. I take care of meds, running to store, prepare meals for him and pay his bills since I am on his account (savings and checking). I am his POA as well. I need to do this as soon as I can since he will be moving into my home in about 4 months once the construction is done.

A:  Aid and Attendance benefits from the VA can be just as complicated as Medicaid planning. Do not do this on your own without an experienced elder law attorney who knows Medicaid and VA rules. Some of the things that work for A & A can adversely impact the senior citizen down the road should they need to transition to a nursing home and need Medicaid funding.

 

Father has dementia but is refusing our help

 

Q: My 82 yr old father (A veteran) needs an aide due to dementia but is challenging help, what are our legal rights? My father is a U.S. Air Force Veteran , widowed 19 years ago. He lives in West Newton now. If he challenges our help, what legal rights does he/do I have beyond having him declared incompetent. My biggest concern is his well being (he is forgetting to eat). I am currently on his accounts but have concerns with costs. What are my options as he is still somewhat aware and wants to remain independent even though we (my 2 siblings) feel that might not be possible. (Jefferson Hills, PA)

A: If he is resisting you I assume you do not have a general durable power of attorney in place. Until he is declared to be incapable of handling his own affairs in a guardianship proceeding, he is free to do as he wishes. This is a difficult situation for both of you to be in. I would not give up on communication. Perhaps he feels threatened and a gentler approach of opening up a dialog with him is advisable. If Westmoreland County has adult services in the area, perhaps they can do a wellness visit or refer him to services to come into the home. The more you talk to him, and others, the more you will learn and the closer you will come to dealing with the problem appropriately. You should consult with an attorney as to what is involved in filing to be his Guardian.

Will I go straight to jail for a suspended license offense?

Q: When I go in for the execution of my jail sentence will I go in front of a judge or straight to jail? I was charged with driving under a suspended license. It is my first time offense. I was sentenced to 60 days in jail. Can I get community service or something else to avoid going to jail? (Bethel Park, PA)

A: If you were convicted by a District Justice, which I think is what you are saying, you have 30 days to report back to turn yourself in for sentencing. A 1543 (b) which is a DUI related driving under suspension, carries 60 days in jail, a $500 fine and a one year license suspension. A 1543 (a) offense is a non-DUI related suspension, carries a $200 fine, a 1 year license suspension and no jail time. I was assuming you were convicted of $1543 (b), the more severe punishment of the two. In Allegheny County, the District Justice does not have jurisdiction to sentence you to house arrest. In order to get house arrest, you have to appeal the conviction within 30 days. When you file the appeal, you will be given a court date before a judge in the Court of Common Pleas who does have jurisdiction to sentence you to house arrest. To file the appeal go to the courthouse and fill out the form at the Clerk of Courts and pay the filing fee. I advise hiring an attorney if you can. An attorney can also handle this for you to make sure it is done correctly and may possibly have the 1543 (b) negotiated down to another lesser traffic offense, if the police officer is willing, or if there is a defense.

My husband just went into an Alzheimer’s care facility.

Q: My husband is 85 and has dementia that turned into Alzheimer’s disease. He also is an alcoholic. A year ago he became violent, aggressive, started exhibiting bizarre behavior, forgetting things on a daily basis, and verbally abusing me. He finally had to go into a memory care home. We have been together for 9 years married for 3. No family on either side. Back in 2011 we went to his lawyer and had his will changed, threw out the old trust and created another trust but only in his name. When we married, everything stayed the same with only a few minor changes. Basically, it states when he passes away everything turns over to me. But I think part of it says he can change anything at anytime. Right now, he is telling everybody at the home how he is going to hurt me, etc. How do I protect my home?

A:  My first thought is that he probably does not have the capacity to sign a legal document at this point. You may want to inquire from his doctor if he is in fact competent. If the doctor says no, it may give you some peace of mind. In the event that someone did have him sign something, you would have a good basis to challenge it. In any event, I think you could benefit from the advice of an elder law attorney. He or she can advise you how to shelter this home and other assets from a potential Medicaid claim, should your husband ever need to apply for Medicaid. You should also make an effort to locate and secure this trust agreement so it is not lost or destroyed by another person.

How to get mom out of nursing home?

Q: My mom was placed in a nursing home by a nephew who has power of attorney over her. She has been in the nursing home for 7 years and 7 months. I have been a personal care professional for 20 years. I ‘m capable of caring for my mom. (Clairton, PA)

A: If your mother has capacity to decide where she should live, the only authority needed for her to move in with you, is hers. She can move wherever she wishes, and, she can revoke the old POA in writing or with a new POA. If she has no capacity to make decisions and is incompetent, you will need to override the POA by being appointed her guardian in court. You should review all of the facts with local counsel to see if this is advisable, given all of the facts.

Is it illegal to make changes to a bank account of a person with Dementia/Alzheimer’s?

Q: How does victim proceed? For years, a lady had her only living relative listed as ITF (beneficiary) on her bank account. Now the lady has dementia. A distant friend filed for Conservatorship saying the lady isn’t mentally capable of managing her own finances, but withdrew the petition prior to the court date. Months later, the friend took the lady to the bank and removed the relative’s name from the account listing herself as ITF (sole beneficiary). Recently without the lady’s knowledge, the friend withdrew over $20,000 from the lady’s account, getting several cashier’s checks, leaving no monies to pay all of the lady’s monthly expenses. Per bank manager, friend had POA, funds shouldn’t have left bank and believes possible friend knows teller. Even if lady signed POA, she wasn’t mentally capable. Is any of this legal?

A:  If your information is accurate, it sounds like she is being taken advantage of and her money is being stolen. This is possibly a case of financial exploitation. Call the Department of Aging to notify them. They may schedule a home visit to assess the situation. A person who has “standing”, which takes too long to explain, is someone with an interest. A person with an interest, which is certainly a relative, can take action. It is possible this elderly person is being influenced or has signed a POA over to this “distant friend”. The interested person who comes forward can file a petition to freeze the accounts and for an accounting of all POA funds. Unfortunately, this involves hiring a lawyer, but may be the most expedient remedy. The lawyer can also advise if a guardianship is needed and can get it started.

Brother with DPOA will not tell me where my Mother is.

Q: Brother and Mother live in Allegheny County, and I am in Wheeling. Mother signed a General Durable Power of Attorney over to my brother. Mother was in an Independent Living Facility, but after a fall, was admitted to in-patient rehab facility. She is no longer there and brother will not tell me where she is. He said she does not want to see me, which is untrue. I discovered his daughter has been added to the title on my mother’s house, for the consideration sum of $10. I believe she is being exploited and coerced. We requested a welfare check, but with being out of state, Pittsburgh PD required contact from our local police, and a missing persons report was filed. Unfortunately, my brother was there when the police arrived and my Mother could not speak freely. How can I find out where she is?

A: If you believe mother is being financially exploited by your brother and niece, as a first step, you can call the county Department of Aging and see if they will do a wellness visit to assess the situation.  If you truly believe you are better suited as a caretaker of your mother, you can hire an Allegheny County attorney to file for a Guardianship, which will result in the court making a determination as to who, between you and your brother, would be your mother’s guardian. However, if the Department of Aging cannot help the situation, the Guardianship may be your only option as you will probably keep running into roadblocks with your brother.  I would also consult with an Allegheny County attorney.