Category Archives: Elder Law

Can I prevent my siblings from selling the family home?

Q: By way of my parents will I have 1/4 ownership of this home that I reside in. My mother has passed away and my father is in assisted care because of dementia my siblings are trying to sell this house worried about future Medical need for my dad who is 91 years old. I want to purchase this home but they’re not giving me enough time to get my credit in order. How can I prevent this transaction from happening or what can I do at this point? This has been my family home for 60 years I do not want to sell. I want to keep it and keep it in the family for my child and my grandchildren. (Pleasant Hills, PA)

A: I assume you mean your parent’s will and not their “living will”? Your 1/4 ownership does not kick in until your father dies. I will assume your father took full title when your mother passed. If the siblings are acting under a valid POA, and these medical needs are legitimate, they can sell the house. In that case, you need to get moving on finding a lender. If there is no POA in place and your father is incompetent, they would need to file for one of them to be his guardian in order to have legal authority to sell this home. This would give you more time. In any event, get moving and find a lender.

Can my aunt contest my grandmother’s life estate?

Q: I have lived with my grandmother for over 18 years now and raised both of my children here with her. When her children found out she left the house to me as a life estate they stopped talking to her. She pays all the bills in turn I take care of her and promised to never leave her and to never allow her to be put in a home. She wants to die in her own house. My family and I care for her every day. We do breakfast, lunch dinner, medicine, showers, changing her diapers, anything and everything that she needs. We are the only ones here to help. They want nothing to do with her and only contact her by phone occasionally. They send her cards in the mail and they live 2 miles away. Sometimes one of her other granddaughters will come here just to take her to the bank to get money. They want to wait until she passes because they know while she’s alive she will fight for me and what she wants for us. But she is 97 and shouldn’t have to go through this. It stresses her out thinking they are going to try to take away the home we have built. is there anything we can do to ease her mind and make sure that these people cannot hurt us anymore? (Penn Hills, PA)

A: It is difficult to tell who has the life estate, you or your grandmother. I strongly suggest that you and your grandmother meet with an elder lawyer or estate lawyer who can look at this deed and advise you as to what your options are. If she has the life estate, the normally will house transfer to someone upon her death, hopefully you. If you have the life estate you can live there until you die, then the house transfers to someone else.

Can my sister evict our elderly mother?

 

Q: Eight years ago, my sister convinced our mother to leave a HUD subsidized senior complex to live in her house instead. At the time she wanted our mother to take care of her house while she lived elsewhere. My mother uses most of her Social Security pension, her only source of income, to pay my sister a monthly rent plus other expenses. My sister has just given notice that she wants our mother out of the house so that she can convert her house into a full rental unit. We are trying to find a place for her, but so far, all the federally subsidized places we have looked at have a one to three year waiting list. My sister says she must be out in six months. Does my mother have any legal rights to remain in the house until she finds another viable living arrangement? (Versailles, PA)

A: I think the reality of the situation is that your mother needs to find elsewhere to live. You could consult with a landlord tenant lawyer. Your mother has rights under landlord tenant law. Normally however, landlord tenant laws are not so generous as to allow six-months-notice unless such time is provided in the lease. You could assist her by reaching out to senior housing programs.

How many years does Medicaid go back for recovery of benefits paid?

Q: Elderly mother has been in nursing home for 2 years. She has used ALL her life savings to pay for it and is now out of money. She receives Medicare but not Medicaid, yet. She owns a very small home that was her marital home (husband is now deceased). She did own family farm that included old family home and acreage but transferred that to her children in 2016. If she applies for Medicaid, can they seize the family farm property to recover benefits paid for nursing home? (Delmont, PA)

A: The Department of Human Services of PA examines all transfers of property done for no consideration or for less than market value by an applicant in the 5-year period preceding the application. If the transfer of the farm to family was a gift, this could subject her to a penalty and consequently delay her ability to receive Medicaid. This are of law is very complicated. You should seek an opinion from an attorney who is versed in Medicaid regulations. He or she will need to know more facts than you have given us here to properly assess your situation.

Mother in a nursing home. Can her guardian sell our house?

Q: I have lived with my mother my whole life. I have cared for my mother the last 15 plus years. My brother had power of attorney though and put her in a nursing home 20 months ago. She is getting low on funds and the guardian wants to sell her house. I am not on the deed, but left the house in her will. Can they sell her house if she needs Medicaid? Can they wait until she passes and then sell her house? I was told that she can still own a home and be on Medicaid and sell the house after her death to pay back Medicaid.

A: You may be OK, but I cannot answer this without much more information. It sounds like her liquid funds are depleted and now it is necessary to sell her home to spend down to qualify for Medicaid. Her guardian may in fact have a duty to do this. It would be good to know if she is considered able to return home. Another thing for you to consider is what was referred to as “undue hardship” under DPW (now DHS) rules. This applies if you have lived with your mother in the home as her caretaker for a two-year period prior to her hospitalization. If so, the home may be excluded as a Medicaid asset, at this time, and you could remain residing in the home.

How can I get power of attorney revoked?

Q: My mother has her boyfriend as her power of attorney. She has become ill but can very much speak on her own behalf and make her own decisions. The boyfriend is not allowing her to have a choice in any decision from what clothes she needs to wear to which credit card to use for a purchase to what she feels like eating for breakfast. He speaks to her as if she is a child and threatens to take things away if she doesn’t do what she’s told. I need to know what steps come first in this case for me to follow. (Pleasant Hills, PA)

A: More information is needed for me to understand the entire picture, but I can give you some general advice. A Power of Attorney can be revoked in writing by the Principal. If your mother is competent, she can sign a written revocation of the POA and have the revocation delivered to any financial institution, hospital or entity in which the POA may be on file or who may have relied on it. It needs to be your mother’s wish to revoke the POA. If she is conflicted because of her relationship with this man, you may want to investigate other measures, such as a guardianship. If that is the case, I suggest that you take her to an attorney and if she resists, consult with one yourself.

Whom should I contact regarding a civil judgment?

Q: My ex-husband signed for a summons for me in 2012, but never told me. I did not respond due to being unaware, and a judgment in the amount of $1094 was placed against me for a credit card debt in May 2012. He received the notice of judgment, but again, never gave me the papers or even told me about it. I just found out about this, and I don’t know who to contact to arrange payments. Should I contact the attorney who sued me? And is it likely they’ll accept payments, because I cannot pay the amount in full at this time? (Jefferson Hills, PA)

A: That is unfortunate. If the judgment was already taken, your options are few as far as legal remedies go. You likely would have to pay an attorney to file a petition to open the default judgment. This can be done but the legal fees involved will likely exceed $1,094.00. If you owe the money your best bet would be to contact the attorney who filed the complaint and work out a payment plan. Beware of interest and legal fees tacked on. If you explain what happened, he or she may reduce the amount added on to the judgment. Good luck.

 

Medicaid Estate Reimbursement

Q: My mother died at 66 years of age without a Will. We were not going to open an estate because there were no assets. However, I found out my mother was the beneficiary of my grandmother’s insurance policy valued at $22,800. This was turned over to PA Department of Treasury, unclaimed property. For us four children to claim this life insurance, we must open an estate. However, in reading small estate law in PA, Medicaid needs to be put on notice if she received it. None of us knew of my mother’s personal affairs as all of us were estranged from her so it is possible she received Medicaid. We are unsure if it is worth trying to collect money from my grandmother’s life insurance that my mother was the beneficiary. Without the policy, my mother died without assets. Is there any advice you can give on what we should do in this situation? (Pittsburgh, PA)

A: Whether you proceed under the Small Estate Petition statute, or file for a grant of Letters of Administration, the Department of Human Services of PA must be notified. They will respond as to whether the decedent received Medicaid and if so the amounts they seek to recover under Estate Recovery. Under the PA Code, section 258.3 (Estate Recovery), life insurance proceeds payable to a decedent’s estate are subject to the Department’s claim. Life insurance proceeds payable to a beneficiary are not subject to the Department’s claim. The problem here is that this policy was not owned by your mother. She was a beneficiary of the policy who did not claim her proceeds for whatever reason. The proceeds turned in to cash after grandmother’s death. Had it been your mother’s policy, and there was a named and living beneficiary, I think you would be in the clear. The other concern is that since the proceeds have devolved to unclaimed property and lose their identity as insurance proceeds, they are viewed as cash. I would not throw in the towel at this point. I do not know the definitive answer on this without doing some research. You may want to consult with an estate attorney to see if it is worth pursuing. If an estate is opened and Estate Recovery files a claim for the entire amount, the estate can pay preferred estate expenses before paying Estate Recovery. These would be reimbursing family members for funeral expenses advanced, filing fees, attorney fees and an executor fee. It may be worth it. The attorney and the executor will earn a humble fee but perhaps someone who had no hope of being reimbursed for the funeral, which can be expensive, can now be paid.

Can I create a living trust or will with my mother’s POA?

Q: My wife and I have been resident caregivers for the last six years of my aging Mother of 90 years of age. She assigned me as her Durable POA approximately seven years back. She is now mentally incapable of making decisions and is approaching hospice care. I would like to designate who and where her final assets (Home and less than $150T cash) would go upon her death. There are siblings involved. She has stated to us in the past how she wanted her remaining assets to be divided. Is her POA within my scope of authority? (Mt. Lebanon, PA)

A: I suggest a consultation with a lawyer. Generally, a Power of Attorney does not allow an Agent to create a trust or a will for the Principal. However, if the Power of Attorney you reference contains the appropriate powers, you may be able to set up trust or similar accounts which will achieve the result you are looking for. I would take the POA to an estate and trust lawyer for review.

How do I transfer assets to an elder parent if I die first?

Q: I am an adult only-child (age 42), and my retired mother (age 68) has no blood relatives other than me. If I were to pass before her, I want her to be protected financially. I currently have her as the sole beneficiary to one of my life insurance policies and one of my investment accounts. My husband is the beneficiary of all other insurance policies and financial assets. For estate planning purposes, what is a good vehicle to consider, for securing that the assets that are designated for my mother provide not only a secure income but also cover basic needs that may arise (ex: home, medical care, long term care, transportation)? (Cranberry Township, PA)

A: A complicated question which cannot be answered without much more information including your mother’s health, the value and structure of her assets, her income, your health, your husband’s health and the value and structure of your assets, etc. It would generally be inadvisable to leave these assets directly to her via the testate process or non-probate succession given her age, especially if she has health issues. The consequences could result in ineligibility for Medicaid and VA benefits, if applicable. A revocable living trust with beneficiary designations aligned with the planning is generally advisable. Again, seek a consultation with an attorney.