Category Archives: Elder Law

WE WANT GIFT PARENTS MONEY TO 7 GRANDCHILDREN BEFORE MEDICAID GETS IT

Q: HOW DOES THIS WORK. I HAVE A PARENT WHO IS IN A FACILITY. WE WANT TO APPY FOR MEDICAID. WE WANT TO GIFT MONEY TO 7 GRANDCHILDREN. WE WANT TO APPLY FOR MEDICAID BUT IN ORDER TO DO SO WE HAVE TO SPEND HIS MONEY DOWN TO BELOW A CERTAIN NUMBER. THE PARENT WANTS TO GIFT SOME TO HIS GRANDCHILDREN. HOW DOES THAT LOOK TO WHEN MEDICAID IS LOOKING BACK 5 YEARS INTO HIS ACCOUNTS? WHEN ALL BILLS ARE PAID DOWN AND FUNERAL IS PRE-ARRANGED. IS THAT POSSIBLE? (NEW KENSINGTON, PA)

A: the short answer is do not do this yourself. It sounds like it would be a flagrant violation of medicaid regulations and could cause your parent to be ineligible for medicaid and spend their remaining days in a run-down, flea-ridden, warehouse for the elderly. there are certain ways to spend-down with the procurement of medicaid exempt necessities and perhaps to even shelter some of this money. however, only do this through an attorney versed in medicaid regulations

Is there a time limit to file an Omnibus pretrial motion?

Q: This is in the state of PA for a criminal case. I was caught in PA for a DUI, which I am contesting and handling myself until I can find suitable counsel. I left my Formal Arraignment the other day with a paper saying I had a time deadline to file the Omnibus Motion. I need to get my lab results to a lab because I suspect they will be tampered with. I also want all the evidence against me. (Sharpsburg, MD)

A: Allegheny County and many other counties, do not strictly enforce the 30-day rule. To preclude further discovery based on a technical time limit would be a denial of due process, so most courts do not enforce the rule. The point is for the defense to not wait until too close to trial to file discovery motions as this may cause the defense to continue the case, or even be precluded if the court feels the defense is intentionally stalling. Get your discovery motion in as soon as you can. Normally, you need to review the DA’s discovery first.  I suggest hiring a lawyer to represent you.

Can a stroke patient appoint a new power of attorney after being declared incompetent?

Q: A month ago, my mother, an incredibly healthy, independent 76 yr. old had a stroke and a heart attack. She lived but missed the critical window to dissolve a blood clot. Since the stroke, she has been on a host of medications which she and I both believe are causing her to be very sick, confused, unable to communicate clearly, and above all, decline rapidly. I’m with my mom every day. She confides in me and I know what she wants. Recently, while in Kaiser ER, she appointed me to make all decisions for her care should she become incapacitated. I signed the paper there and at her nursing facility when she first got there. The very next day, I was shocked to bump into her old friend at this nursing facility, who said she had just signed the same papers there and is now her new POA! My mom does NOT want this! A former trustee in my mom’s original will, she was removed last year when my mom modified the will. She immediately began to insist I hand over my mom’s checkbooks, alarm code, house keys, credit cards, & has since locked me out of the house! We don’t agree on ANYTHING about Mom’s plan of care. My mom wants to come home, but she won’t let her! Please help? (Scott Twp., PA)

A: This is a terrible situation, and you need legal counsel. If you were appointed Guardian, the guardianship would trump the POA. As a child, you would have standing to be her Guardian, than an “old friend”, unless you are not fit by state law to be Guardian. You will need to consult with an attorney. If your attorney can examine the POA this old friend has, he can determine if it is compliant with PA state law as well as advise you on filing to be her guardian. Regarding being locked out of the home, were you living there? If so, the old friend must follow the PA Landlord Tenant Act and give you appropriate notice. That will at least give you a month or two in the home.

How can I change an address on a durable POA?

Q: In 1988, while living in Pittsburgh, my wife and I had durable powers of attorney created. Nothing has changed except we now live in Florida. How can I update the addresses? (Swissvale, PA)

A: Powers of Attorneys are state specific. Many states require a POA to strictly comply with state law. If it does not, the POA can be rejected by anyone to whom it is presented, such as a banks or medical provider. I would have new estate planning documents drafted by a FLA attorney.

Can I be sued for Filial responsibility if my mother in law lives in PA and I live in FLA?

Q: My mother in law lives in PA. She is controlling, verbally abusive and poorly manages money. My fiancé wants nothing to do with her. Could my mother in law sue us for Filial responsibility? Nothing has happened yet, and she is not in nursing care. (Clearwater, FLA)

A: It is not your mother in law who would have a claim against you. Filial law was designed as a cause of action for a medical service provider against certain family members for unpaid service provided to an indigent person. If this were to happen in your scenario, it would likely be a suit brought by a nursing home, rehab or hospital if your mother’s care needs were not covered by insurance or her social security income or whatever other income or assets she has. If this potentially would happen, the fact that you are a resident of FLA would make a lawsuit more challenging for a PA based medical service provider.

If parents in nursing home on Medicaid who is responsible for home upkeep?

Q: My parents put their home and property in a life estate with my sister, my deceased sister’s son and myself. They have since been confined to a nursing home and on Medicaid. (life estate set up 10 years prior to Medicaid so the 5- year look-back is not an issue) My main question is who is responsible for the maintenance, upkeep and financial obligations of the property? My sister and I have been keeping it up, but the nephew has refused to do anything. (Baldwin, PA)

A: I would need to review the life estate before advising you adequately. Is the life estate in their will or in a deed? If the life estate is in a deed that was filed 10 years prior to Medicaid eligibility, the only part of the transaction you need to be concerned with would be the value of the life estate. If your parents held a life estate, they had the right to live in the home that you now own, until the conditions which terminate the life estate are fulfilled. Their life estate has value. Maintenance issues would generally fall upon the owners unless the nephew tenant was obligated to do maintenance pursuant to a lease. Again, you need to have the documents reviewed to get a more thorough answer.

Can nursing facility take your parents savings and home?

Q: My mother has Alzheimer’s and we are looking into placing her into an assisted living facility which deals with her specific needs. If me and my siblings self pay with no charge to her insurance, is the facility entitled to their savings account and or home? (Munhall, PA)

A: I believe your question is whether or not Medicaid potentially has an interest in your parent’s bank accounts or home. The assisted living facility does not care who pays the bill, as long as it is paid. If the bill cannot be paid due to the exhaustion of funds, the facility will advise the next of kin to apply for Medicaid. Once the Medicaid application begins, Medicaid will require the next of kin to report all of mother’s assets. In simple terms, since Medicaid is potentially paying for your mother’s nursing care for the remainder of her life, they expect a contribution of the value of her personal assets. Medicaid looks at all transfer of an applicant’s assets within the five years preceding the application done for less than fair compensation. This normally include gifts to family. Any asset so gifted, can penalize her from Medicaid coverage to the extent of the value of the asset transferred. Since you can afford private pay now, you have some time to prepare for the future when mother’s costs may grow significantly, and you therefore should meet with an attorney.

Can my brother force the sale of my mother’s house?

Q: My mother is in a nursing home. Before that I was her caregiver. I am still her power of attorney. I still live in my childhood home and have started a family of my own. My brother just got out of prison and wants the house. He only lived in the house for one year and never paid even one bill. I used my retirement from a previous job to pay off the house and I’ve paid every bill for almost 10 years. My mother has 4 children in total and everyone else has started a family and lives elsewhere. Does my brother have any rights? Can he force my family out of the house? Can he even try to sell without permission from me and the rest of my siblings? (Pittsburgh, PA)

A: What does your mother’s will say? I am assuming your father is not alive. If your mother is competent, she can sign a will which leaves the house to you. If your mother has a will which leaves everything to the children equally, you may not get to keep the house and be forced to buy your siblings out if you want to keep it. The same result could happen if she has no will, under PA intestate succession law. If the sale of the house would be the result, you have a good argument to recoup your investment in it from the proceeds of the sale. I would consult with a lawyer as soon as possible and before your mother’s condition digresses.

How do I get power of attorney for my grandfather who is currently in a different state?

Q: My grandfather is currently in a different state (Ohio) and I’m in PA) at a physical rehabilitation facility and they are pressuring him to sign a contract for long term care. He doesn’t want to do this, but his daughter (my mother) does not want him to live at home with her. I am willing to take on care for him and move him in with me, but I want to make sure I do everything legally. He is mentally present with no dementia but does need constant care and handicapped accessible housing. I can provide both. What steps do I need to take? (Robinson Twp., PA)

A: If you want to be his caretaker and your motives are pure, that is commendable. If your grandfather is competent, he can sign himself out of rehab and move out of state with you, if that is what he wants to do. He is free to make his own decisions and live with whom he wishes. If the situation is more complicated, I advise that you contact an attorney where your grandfather lives and set up a meeting with you and your grandfather. The attorney can assess your grandfather’s competency and his willingness to go with you. If needed and appropriate, a Power of Attorney can be executed which would give you authority to manage your grandfather’s affairs if or when, he is unable to do so. If needed you can discharge him from the rehab with the POA. Once in NC, you should consult with a lawyer there to have state specific documents drafted for going forward.

My POA sister-in-law for my husband stole 40K from him

Q: My husband lives in assisted living facility and my sister in law has not paid any of his bills for the home nor had she paid pharmacy bills, etc. What can I do? She will not answer any phone calls from me nor the assisted living facility. (Pittsburgh, PA)

A: Call the Department of Aging and report Elder Abuse. You may want to see if the police can help. Neither agency may want to be involved as your sister in law is presumably in charge and it may take a court order for them to investigate her use of his funds. Although I would talk to these agencies, it may be necessary to involve a lawyer to file a petition for accounting which will force her to account for her use of his funds. If it turns out she stole money, criminal charges of theft and civil liability may be in her future.