Category Archives: Elder Law

How will the Will execute for a parent who on Medicaid?

Q: The surviving parent dies while residing in a nursing home. She has been covered by Medicaid for past 4 years. The Will reads that the only child is her beneficiary. Knowing that Medicaid is entitled to some portion of the parent’s estate (less than $2,000), is Medicaid entitled to the full amount or only a share of the residual estate? (Pittsburgh, PA)

A: Generally, Medicaid will be entitled to a share of probate assets depending on the amount of their claim. If it is necessary to open an estate, the estate is required to notify the PA Department of Human Services (DHS), who manages the federal Medicaid program, of the death. DHS will reply to the estate with an Estate Recovery Statement of Claim, which will inform the estate how much DHS is seeking as a claim. The estate then needs to address DHS in writing regarding settling the claim or explaining with supporting documentation why the claim cannot be settled (i.e., insufficient assets), whether an estate is opened or not. If the remaining estate of this person is $2,000.00, it is doubtful Medicaid will seek a claim, but you never know. You may be able to shelter the money with a funeral related expense. I suggest you consult with an attorney regarding this matter.

How do I get my boyfriend to leave my dad’s house?

Q: He refuses to leave. He says he’s a permanent resident in this home. He has not paid my dad rent. He is verbally abusive and has got in to it with the neighbors across the street. I feel very hopeless. My dad has had 3 strokes. I told my boyfriend that I can’t take it no more he runs and runs his mouth for hours and just won’t drop it. He calls my dad foul names and makes gestures like he is going to hit my dad. My brother is working in Alaska and says he take care of him when he comes to town in July. Before my brother kills him I just want him out of the house. (West Deer Twp., PA)

A: You can file for an eviction. Ask your local District Justice Office for advice on how to do it. You will need to post a Notice to Vacate in the premises, then file for an eviction. You may also have rights under the Protection from Abuse Statute. This would involve an act of violence or a threat of violence coupled with a prior physical act. You should start by talking to the local police to see how they can help. They may guide you through the PFA process or even file criminal charges if they think that is appropriate. If you want to pursue a Protection from Abuse Act petition yourself, you can go to the Family Division and file one or hire an attorney to file. I would start with the police.

Can my brother and I sell the house where my mom has lifetime rights?

Q: She was diagnosed with dementia and was put in a nursing home. She will never leave this facility. She has some sort of lifetime estate in the deed. (Braddock Hills, PA)

A: It depends on the wording of the life estate. Many life estates are worded, “until death or unable to return home”. I would have the agreement reviewed by an attorney first. Obviously, if the life estate has been fulfilled, and it is clear she cannot return to the home, you can sell the home. Remember, there are inheritance tax consequences of her life estate, in that the life estate itself is subject to inheritance tax.

Can I sell my mother’s car as her POA?

Q: My mother Is in a nursing home and will no longer be able to drive her car. I want to sell her car. Can I do this with just the POA and go to a Notary Public?

A: If it is a legal Power of Attorney, in that it complies with the requirements of state law, and, it authorizes you to sell or transfer her property, you can do it. There are other factors to consider such as Medicaid. If she should need to apply for Medicaid in the next five years, the transfer of any personal or real property without consideration (i.e., gift, under market value) could disqualify her for benefits to the extent of the value of the transfer. If you sell the car, keep records of the transfer and put the money in your mother’s bank account and only use if for her expenses. First and foremost, consult with an attorney, especially if Medicaid may be in the future.

Can I get paid for taking care of my elderly mother?

Q: My sister filed a petition for conservatorship of my mom last October without discussing it with any family members. She lives in Georgia and I live with my mom in PA. My mom has no access to any of her funds and my sister stopped sending money 6 months ago. My mom has moderate dementia and has good days where she is alert and days where she is sleepy and not as clear. She receives 2k a month from her pension and about 3k from rental property. Because of the conservatorship she has access to none of it. I had planned on taking my mom to the hearing back in December because the court docs said she must be present, but my sister told me that she didn’t have to be there, and I trusted that, so we didn’t attend. Now I’m understanding that would have been the time my mom’s needs and wants could have been heard. I’m not working and live with my mom and have taken care of her for 4 years. For the past 6 months my mom and I have asked for some financial help from my sister who has control of the estate and have been denied or told that she needs to talk it over with the attorney. I don’t think I even have an option to get an attorney for my mom because she can’t access funds to pay. (Washington, PA

A: I will assume, your sister was appointed in PA and just happens to live in GA. The larger picture is that your sister is acting as conservator or guardian of your mother and according to you is not supporting her sufficiently. This requires the conservator appointment to be questioned. I suggest you speak with a local elder law attorney or attorney who handles guardianship law to advise on what your options would be. If it is readily provable that your sister is not acting in your mother’s best interest and not fulfilling her fiduciary duty as guardian, you may have legal grounds to for her to be removed as Guardian you appointed. The fact that she lives in GA raises questions as to how she closely she can care for your mother. I view your payment as caretaker as less of a problem. I would keep an itemized daily account of everything you do and keep expense receipts. The attorney can provide more advice on what records you need to establish for your services. If you keep a detailed invoice, you can submit it to the conservator. If she will not pay, that is another matter.

My fiancés grandfather is living with us. Are we liable?

Q: My fiancé’s grandfather is 92 and has some type of dementia. He was living with his daughter who is his caregiver, but they had a fight and he moved with us at his house. The house is not safe for an elderly and he stays home for over 10 hours while we work which is very concerning to me. Are we liable if something happens to him? My fiancé’s aunt just dropped him in our lap without any information about his medication and things he needs or things he can’t have. My fiancé’s grandfather was the one who decided to move in with us. He is not able to make decisions of his own. I need to know what I can do to get him to a safe place and are we responsible for anything that happens to him or is his daughter liable for it? Please help. Thank you.

A: Your fiancés aunt sounds like a real sweet lady. If I understand this, he owns the house and you and his granddaughter are living in it? If you do not want to take care of him, call the Adult Protective Services to assess his ability to live alone. Then you can move out and he is on his own. If you want to help him, you need to have him assessed by a doctor. This will give you an idea of the level of care he needs. You can reach out to and senior citizens care groups or perhaps get a referral from his doctor. He may need in home care, or possibly assisted living. If he has social security and a pension, he should be able to afford this. You should also seek the advice of an elder law attorney. If this man is competent, he should execute a Will and a Power of Attorney. If he is not competent the attorney can advise you about a guardianship. You should also be advised of how Medicaid would impact the situation, if he needed to apply for benefits. It will certainly be the right thing to do and honorable if you decide to help him, but it could be a lot of work.

What if the person acting as power of Attorney has taken the money?

Q: She transferred his money into her account. No one knows in what bank. How can he get his money, vehicles, business’s, house’s back from her? (Bridgeville, PA)

A:  More facts are needed. If she abused the Power of Attorney by stealing money from the Principal, this would be a violation of the POA and would be a crime. However, and again, more information is needed. You would need an attorney to review the Power of Attorney document and advise accordingly.

What if the person is not competent enough to sign POA?

Q: My father is currently in a rehabilitation facility and POA has been granted to an in-law I don’t trust. He has early onset Alzheimer’s Disease and is unable to articulate full sentences. How would I go about transferring the POA to myself so that I can better assist him with his needs? (Pittsburgh, PA)

A: Your father can only execute a new Power of Attorney if he is competent. Ask his physician or the Social Worker in the rehab facility if in their opinion he is. If he is not competent, you can file in Orphan’s Court to be his Guardian. You will need an attorney. The attorney can advise as to your chances of being appointed by a judge to be Guardian over the present Agent on the POA if he or she should challenge you.

How do I get my son off my deed?

Q: I have a legal mess on my hands. Me and my son co-own a home. He has done over $15,000 worth of damage to a home we co-own. I had Service Master in here and got a quote. It is a biohazard environment due to his needles, urine, feces and any type of valuable scrap metal he ripped off the home to sell for drugs. We both pitched in $15,000 each for the home. He has done nothing but devalue the home. What legal rights do I have. I currently have a PFA on him due to the past year of receiving 5 beatings for money. I am disabled and no can no longer take this somebody please advise.

A: As far as what you can do about the physical abuse from your son, you can file for a Protection from Abuse Order, which it sounds like you have done. You can also file criminal charges if he assaults you or threatens you with serious bodily injury. As for getting him off the deed to the house, there are two ways this can be done. The easiest way is for him to sign a new deed to you. The other way is through court by filing an Action for Partition of Real Estate. This type of suit can be expensive and time consuming.

How does POA work when you have siblings?

Q: How does power of attorney work in cases where the parent is no longer there, mentally, has offspring, and has NOT written anything in the will about power of attorney? If one of his children asks to get power of attorney because of his/her parent’s weakened metal state, is it given to that sibling without informing the others first? Suppose that sibling happens to be a con-artist, hoping to take his/her parent for all his money? Lastly, where do you go to get power of attorney in this case? The state? Hire an attorney? (North Strabane Twp., PA)

A: So long as they are competent, a person can sign a Power of Attorney which appoints anyone he or she chooses as Agent. The Agent does not have to be the person’s spouse or child. A person who becomes appointed under a POA, has no duty to tell anyone, including his or her siblings. It is best to have an attorney consult with the person who is designating the power, the principle, assess his or her competency, then if appropriate, prepare the Power of Attorney. Depending on what you mean by the parent “…no longer there, mentally…” could affect whether the parent is competent to sign a POA. You can consult with an attorney or take this parent to one.