Category Archives: Elder Law

How does a wife reverse a court ordered guardianship?

Q: My mom asked the court if she could be a guardian over her husband because he was taking money out of the bank and misplacing it. He was making bad buying decisions etc. He was also very sick at the time and needed to seek medical attention, but we were unable to get him to go to the hospital. He is now staying in the basement of my mom’s house and we all take care of him. She was granted guardian over my dad but then she does not like the fact that she has to ask the court every time she has to make decisions for my dad, such as paying for certain things for him, writing end of the year reports, etc. They have been married for almost 60 years and she feels like she should not have to asked permission for every little thing. How can she get the court ordered guardianship reversed? (Pittsburgh, PA)

A: If a person does not want or cannot serve as a Guardian, a substitute or successor Guardian can be appointed. I assume a lawyer assisted your mother in being appointed Guardian, so my advice would be to contact that lawyer and ask if he can file a Petition for Successor Guardian.

Does ATF need to be present if the loan holder closes an account?

Q: My sister is ATF on my father’s account and my father is thinking of disrupting our inheritances now before he passes away. Does she need to be present for him to do so? (Uniontown, PA)

A: I think calling in the ATF is a bit drastic. I am not sure what “ATF” means to you. I associate it with the Federal Bureau of Alcohol, Tobacco and Firearms. If you mean, POA as in Power of Attorney, I can answer your query. The person who appoints an Agent to act on his behalf under a POA is called the Principal. Generally, the Principal (in your case your father) can do as he pleases even after they have appointed someone as their Agent (your sister) on a POA. If the person is declared disabled or incompetent, then the powers of the POA come into effect.

How I could find out if anyone has POA over my disabled nephew?

Q: My sister had my nephew living with her and she was caring for him but then she sent him to with his dad (my brother) to care for him. He gets his social security for him now but we need to find out if my sister has power of attorney over him because my brother just found out that his illness has gotten worse and they are recommending a nursing home. My brother doesn’t want to go he wants to take care of himself, so we need to find out if she has power of attorney or not. (Johnstown, PA)

A: If your brother is competent it matters not if someone has a POA over him. He can do as he pleases and does not need to be directed by the Agent on the POA. As far as finding out if he signed a POA to someone, POA documents are not filed or registered anywhere so there is no place to look them up. You will have to ask around and do a little investigating. Why don’t you just ask her?

Q: Can I take her to court for transferring his assets with a POA?

Q: My husband updated his Will recently but failed to update his General Durable POA. I don’t know if he did it on purpose or simply forgot. A couple of days before he passed away his daughter took out $100K in stocks that were supposed to go to me after he passed. My question is, can she prove she acted on his best interest? She told me he asked her to take care of his affairs and that is what she was doing. However, as far as I know there were no witnesses when this conversation took place. Can I take her to Court and win on the grounds of the updated Will and how is her taking his money in his best interest? (Donegal, PA)

A:  More information is needed but based on what you say, she could have exceeded the scope of authority granted to her through the POA. Under the recent enactments to the PA Power of Attorney statues, the POA must specifically grant someone authority to make a gift to themselves for her to do what you say she did. You need to speak with a local attorney versed in the most recent POA statute and have him or her look at the POA document. I just spent almost three years litigating a similar alleged abuse of POA powers. I would act now before she liquidates the funds. If the attorney feels you have an issue he will want to get a court order to freeze the funds pending his investigation. Additionally, under the law in most states, she would be barred from testifying to the conversation with him under the PA Dead Man’s Act because she would financially benefit from a statement made by a dead person.

Will social security deposit a SS check into guardianship account?

Q: My aunt has Alzheimer’s and has been found mentally unfit. I have been appointed plenary guardian by the court. She is in a nursing home. Her son-in-law had authority to sign checks on her account, but no power of attorney or other authority. He sought to have the Public Administrator appointed as her guardian. I intervened, as she is my aunt and I am willing to act on her behalf, and I was appointed plenary guardian of her person and estate. I have Letters of Appointment. I call to Social Security to ask that her monthly check be moved into a new checking account. I was met with much resistance, and I was told that my paperwork was meaningless. How to proceed? (Bulger, PA)

A: Social Security does not have to deposit the check into your guardian account. The Social Security Administration has its own system which consists of appointed representative payees who receive payments for recipients. It has its own separate application process to become a representative payee. Unfortunately, you must apply. The fact that you are a relative and were appointed by the court as a Guardian will not hurt.

Can I have my elderly parent involuntarily committed?

Q: One of my elderly parents has randomly run away in the middle of the night and may or may not still be in this state. This parent has shown to have signs of paranoid Schizophrenia and has even driven their vehicle recklessly knowing full well that it has not been properly maintained. I feel by having this parent involuntarily committed they can receive the care they deserve, and also apply for Social Security Disability if they are found to have a disability in the process of being examined. My other parent has told me I have no right to have that other person involuntarily committed even though I am that person’s son, and I’m also above 21+. What rights do I have as their son? What can I do to have my elderly parent involuntarily committed so they can receive the help they are trying to avoid. In the end they may stay or go in our relationship, but the end game goal is to help them the best I can instead of letting them put others at risk. (Pittsburgh, PA)

A: You can file for a 302 under the Mental Health Act however, your parent would need to be located first. The process is not difficult, but whether a delegate will agree that your parent is a danger to themselves or others and commit them, is another question. I sense that you are younger, and your other parent may have a reason for not wanting to commit this person. I think you should consult with an elder law attorney who handles mental health commitments and guardianships for an opinion. There are more facts needed to be known and it may be worth the consultation before you pull the trigger on this.

ELDER LAW, MENTAL HEALTH ACT, INVOLUNTARY COMMITMENT, SECTION 302

Can I, as an heir of my mother’s will, get full financial disclosure from my sister who was POA?

Q: Mother had dementia and agreed to my sister being POA. I believe money is missing and was misused during the required Medicaid spend down. I went to original consultation with elder care attorney, but my sister fired him, without my knowledge. The new attorney did Medicaid paperwork but neither attorney nor my sister will share details with me. Based on my knowledge of assets at beginning of illness, mom had about $210k of assets, Medicaid summary shows $168.5k of spending (with $55k spent on groceries in 2 years! and other questionable expenses). Neither the original assets or spending includes 30 months of approximately $45k in social security or stock dividends. Do I have a legal right to bank statements and other financial information to do my own audit? If so, how can I get this info? (Pittsburgh, PA)

A: A party of interest, which you would be as an heir, can petition the court for an accounting of all monies spent by an Agent while serving under a POA. The accounting can be for the period while the Principal is alive or after the death of the Principal. If your suspicions have merit, you can petition the court to ask her to produce a full accounting. It will go better if you have an attorney handle this for you.

Can POA withdraw money from his accounts?

Q: My 92-year-old roommate’s son has become gravely ill. A week or two after the onset of his illness the daughter had him signing all kinds of forms. She froze his bank accounts and I believe she has moved all of money to a bank in her city. (Oil City, PA)

A: I am thinking that you are asking if your 92-year-old roommate’s daughter can move or transfer the son’s money. She can do so if he was competent when he signed “…all kinds of forms…” and one of those forms was a legal general durable power of attorney which authorizes her to do such acts. If you feel this is not the case and he may be the victim of elder abuse, call the local Department of Aging and ask them to visit and talk to him.

Do I need power of attorney or just temporary documents?

Q: My 48-year-old daughter is in hospital on a ventilator. She has been diagnosed with Castleman’s Disease. She has other other issues as well. She is not married at this time. Her children can’t handle her business affairs. I’ve been asked to handle her bills, and business matters. I am in the dark as to what I need in writing if anything at this point or can I just make decisions? (Pittsburgh, PA)

A: I am so sorry. If she is mentally competent, even if she cannot speak, she can execute a financial Power of Attorney which will allow an appointed person to manage her financial affairs. She can also execute a medical power of attorney. If she is not competent, you may need to establish a guardianship over her. I would consult with an attorney who can more fully advise after gathering all the facts.

Can my mother’s spouse deny a live-in caregiver for her?

Q: My mother, who is very ill would like to hire a family member as a live-in caregiver. Her husband does not want them there. Does he have the right to deny her a live-in caregiver? (Carrick, PA)

A: These are complicated situations. If your mother’s husband is a sole owner or owns the house with your mother, he can bar you or a caregiver from entry. If you feel your mother is being neglected or abused, you can call the Department of Aging of Allegheny County and see if they will investigate. If her husband becomes more obstinate, you may want to consider filing in court to be her guardian. I recommend a consultation with an elder law attorney.