Category Archives: Estate Law

Sister is stealing from my mother

 

Q: My sister is being investigated for elder abuse on my mother and I am wondering if her employer is liable for her actions? So my sister was able to get a healthcare position with a local healthcare firm in which she is able to be my mom’s personal healthcare attendant. Now over the last month it has come to the forefront my sister has been stealing personal checks from my mother which caused a huge financial strain on my mom. The company is still allowing my sister to go to my mom’s home which has my mom terrified that she is going to steal again. Is her employer liable for her stealing since my sister is their employee and they haven’t removed her from my mom’s case?

A: An employer is generally liable for the actions of an employee, but not always. If the employer is aware of the wrongdoing of the employee and allows her to continue to be employed, liability against them is even better. However, your case is complicated by the familial relationship and can be further complicated if mother has competency issues. If mom is telling you that your sister is stealing from her but denying it to the employer, the situation gets more complicated and their liability decreases. If you really believe this is happening, you should put it in writing to the employer, or file a claim with them or whatever complaint procedure they have in place.

 

Department of Treasury has money owed to the estate

Q:  The former administrator (attorney) of estate asked to resign from a case in 1998 which was permitted. A second attorney was assigned the administrator in 1998 for the deceased, who had no will. There are current funds that are being at the State Treasury for a substantial sum. Can the dead person’s daughter ask probate court to be assigned the administrator?

A: Based on the limited facts given, I am assuming that the estate was closed years ago? If the Department of Revenue will only release the money to the estate, all is not lost. If the estate was closed (which I am not sure it was) it can be opened again through a temporary grant of letters, to another person. If the daughter qualifies to serve as an administrator, she may be able to serve unless she is challenged by another heir for the position and loses the challenge. It is possible that the new proposed administrator will have to petition the court to reopen this estate. You should consult with an attorney so he or she can review the entire situation including the status of the estate to determine if it was administered and closed properly. If this estate was never administered properly, there could be unpaid debt and delinquent taxes owed which may not make it worth the trouble of opening again.

How can I gain possession of a dead relative’s home.

Q: My uncle who was married died in 1972, his wife died in 2001. No kids. There isn’t a will and I wanted to know if I need a lawyer to go to Probate court.

A: You really need to sit down with a local probate attorney as there are too many issues here. For example, is the house in his or both of their names? Did she have children prior to their marriage. That is major. You may end up inheriting a portion of it with his wife’s heirs if both are on the deed. Much more information is needed as well, for example, is there a mortgage? Are there liens against the property for unpaid municipal services or taxes? Does your uncle have any judgments against him? If any of these problems exist, you would take ownership of the property subject to those liens and unpaid mortgages or taxes. In addition, has inheritance tax been paid? Interest begins to accrue after nine months and penalties can be imposed. You need to proceed with caution and do some research before opening an estate

Should we gift mom’s home to ourselves?

Q: Mom lives with us instead of nursing home. She had several strokes and wants to move back to her home which needs major repairs. How do we this sell her home and not lose it all if she would have need more care. She is 89, she has health insurance. We heard if she gifts it to us we could lose it if there were medical bills. How can we safeguard our investment to the home to make it livable? She has a daughter with power of attorney who also would like this to happen.

A: A gift of the home or transfer of any of her assets without fair consideration (like for a dollar) would likely result in the imposition of a penalty if your mother needs to apply for Medicaid at anytime during the five years following the date of the gift. That does not mean she is without options. It may be possible for her to pay for a caretaker, which could be you, but it should be done carefully, under a contract drafted by an experience elder law attorney, who is versed in Medicaid law. You may also want to consider being her live-in caretaker. To provide an answer to this question, an attorney would need much more consideration including details on her financial estate, her medical condition and health and life expectancy. It would be wise to consult with a local elder law attorney, before you do anything.

What is the widower entitled to if the spouse goes on Medicaid (PA)?

Q: My grandfather is unresponsive in a long term rehab center. He is 65 (December Birthday), has Medicare and Bankers Life/Colonial Penn Plan N. He is about to run out of covered days. The thought was to put him on Medicaid, but we don’t know what they can take (home, savings, property, cars, etc.), what the widower is entitled to keep, and so on. We also don’t know how it will work with Social Security – will she be able to keep his monthly check? Together last year they made a total of a little less than $40,000. Everything they own, their house (no mortgage), 3 cars, and all bank accounts are in both their names. The other problem is that my grandmother doesn’t have power of attorney, and since my grandfather is unresponsive, that isn’t possible (to my knowledge). What about guardianship? (Forest Hills, PA)

A: You really need to find an elder lawyer versed in Medicaid regulations to guide you through your situation. Generally, the state takes a snap shot of the assets a married couple owns at the time of eligibility for Medicaid. It doesn’t matter if the accounts are titled jointly or in either spouse’s name. There are certain assets that will be excluded such as the primary residence, one car, certain life insurance and qualified retirement accounts of the community spouse (the spouse not in the hospital). This snapshot value is added together — the community spouse gets to keep at a certain amount of assets pursuant to Medicaid’s convoluted formula. Sometimes, you can increase the maximum amount that can be retained if. Again, you really need a thorough assessment of the situation. If grandfather is not competent to sign a Power of Attorney, you may need to have an attorney file for a guardianship over him.

How to revoke a Power of Attorney

Q: How can I revoke my power of attorney? What if my agent engages in unauthorized acts after the power of attorney has been revoked or terminated?

A: Normally, POAs are not filed with the court. Also, normally, a POA has language that states in can be revoked in writing by the Principal. Therefore, you should be able to revoke this, by drafting a Revocation of POA. Once you do this you should have the Revocation delivered to every institution which may be relying on it, such as banks and hospitals. If your agent has acted contrary to your interest after having knowledge of the Revocation, he or she, could be subject to criminal charges or a civil suit, especially if he or she has stolen or converted money or assets. You may need a lawyer to assist you.

Transfers of Assets Regarding Nursing Homes

Q: I am purchasing land from my mom so that she can have some cash to spend for living expenses. My mom is 78 and in fairly good health but if she needs to go into a nursing home within the five year “look back?” After the transaction can the nursing home take back that property if it was not a gift?

A: GENERALLY, if the transfer is for fair consideration, it should not exclude her from Medicaid eligibility. This means fair market value as documented or appraised. If you do this, you need to document everything henceforth, so if called upon down the road in the Medicaid application process, you have your proof.

Can I be paid for my POA services?

Q: I am a power of attorney for my wife’s Aunt. I do everything from pay bills for nursing home, do income tax, get health ins.etc. I take care of her house, clean, sprinklers on and off, buy things she needs, check medical bills, and a whole lot more. My question is, how much can I charge her monthly. I drive 45 minutes, 2 days a week to make sure house is ok. Is $300 a month ok!, or, is it too much or not enough. Thank you for your input! (West Newton, PA)

A: You can charge a fee for your services as an Agent on the Power of Attorney (POA) if authorized by the language contained in the POA. If the POA does not mention a specific dollar amount, it probably says a “reasonable fee”. If so, the fee must be reasonable compared to the normal fee charged by elderly caretakers. You may want to investigate. It may be in the $20 to $30 per hour range. Beware however, if she ever needs to apply for Medicaid in the near future, these payments could be considered a transfer without fair consideration and could disqualify her from receiving Medicaid benefits. If you fell she may need Medicaid in the future, you need to meet with an Elder Law attorney who is versed in Medicaid law, to review the entire situation.

If my mother is in a memory care unit is she competent to give a power of attorney?

Q: Mother’s memory has deteriorated to the point where she must reside in an Alzheimer’s care unit. Does she still have the legal capacity to grant a power of attorney or to consent to a formal guardianship? Who determines competency if there is a dispute among siblings?

A: A person must be mentally competent to sign a Power of Attorney or to consent to any document or in any legal proceeding. If she is in an Alzheimer’s unit, one would think her competency is compromised. I think you need to consult with her doctor as to the level of her competency. If she has basic competency, even with an Alzheimer’s diagnosis, she may be able to sing a Power of Attorney.

HUSBAND DIES, DOES WIFE OWN HOUSE?

Q: Who owns the house? I co-owned a house in which my ex-husband resided. He died with my name still on the deed. Who owns that house now, me or his heirs?

A: If you were married to him at the time your name was put on the deed, it is presumed to be property held by the entireties and passes to the survivor spouse, upon death of the other spouse. I would take the deed to a local lawyer to review it. There is no legal necessity to have a new deed prepared if your deceased husband’s name is still on it, however, some surviving spouses do this.