Category Archives: Estate Law

Yesterday I agreed to a court- appointed guardian over my mother

Q: My appointed attorney made it sound like I was agreeing to have someone help me care for my mom, and I had told her from the beginning I did not want the state to appoint a guardian. I had no idea till it was too late. I would have never given my mother’s power of attorney away. How do I appeal this?

A: I would need more information to answer this. If you just “agreed” to it, and you haven’t gone to court and obtained a guardianship order, you should be able to tell your attorney you have changed your mind. If your attorney filed a petition, a hearing was held, and a judge issued an order which appoints a guardian over your mother, and you participated in this proceeding and now, you want to rescind the order, that is an entirely more complicated matter. You will probably need a legal opinion from another attorney on how to challenge the order. Don’t wait, tell the attorney now of your intentions.

What should I do to make sure my spouse does not inherit my house?

Q: I have been married only two years. I purchased this townhouse a year ago in my name only. She and I want to make sure she does not inherit it and the mortgage when I die.

A: You need to talk to an estate lawyer. If your spouse is not on the deed, nor on the mortgage, that is a good start. However, she could still inherit from your estate. To avoid this, you can disinherit her from your entire estate in your Last Will and Testament. You can also leave the home specifically to someone else in your will. As a spouse, if she is disinherited from the will, she can file an “election” against the will. If she has no interest in doing so, then it should accomplish what you want. It shouldn’t happen, but when someone inherits from an estate, and there is an unpaid mortgage, I have seen legal counsel for the mortgage company, sue the heir or heirs of the estate when the mortgage was not satisfied. I have had this happen even when the heirs filed a disclaimer against the estate. You should consult with an estate planning attorney and go over all the options. The only way to assure she will not inherit it is by leaving it to someone in your will. If you have no will, she may inherit all or a portion of it under state law. You may just need a will.

Are insurance proceeds reported on an estate Inventory?

Q:  Are life insurance proceeds paid to a beneficiary need to be listed on the Inventory for probate?

A: Generally, in Pennsylvania, insurance proceeds, if payable to a living beneficiary, are not part of the estate and therefore do not appear on the estate Inventory nor are they subject to inheritance tax.

If blood comes back clear, will I still be charged with DUI?

Q: What are the limits for controlled substances Oxicodone, Percondan and Ambian? I was driving in the dark on unfamiliar road with no street lights and oncoming traffic with bright lights. My vision went double. I dropped a cigarette and reached for it. I fell down a flight of stairs 8 wks ago and still have black and blues on my face. I do take meds, some controlled, some not, but they taken earlier in the day, like 8 or 9 hrs before incident. Can I seriously be charged for taking prescribed meds?

A: You can, seriously. If you have controlled substances in your blood for which you have active prescriptions for, you can be charged if the laboratory test results can show that the levels were beyond the prescribed limit. This is difficult to do but can be done. The Commonwealth would add to this evidence the testimony of the police if your behavior was consistent with being under the influence. If you are charged, I would hire a lawyer to look closely at the blood test and maybe even petition the court to have your blood sample tested by an independent lab. Good cross examination of the Commonwealth’s “expert” at the preliminary hearing, if one is called, could really benefit you.

I live in Florida but am an Executor in PA

 

Q: I live in Florida and am executor for a will in probate in PA, Allegheny County. Do I need a lawyer licensed in both states to help me file tax papers. (Bradenton, FLA)

A: The state where the decedent had residency, is the state where the estate must be opened. If all of the property is in PA, a NJ lawyer may set up an estate in PA. For convenience, depending on the local PA law, you may be able to be sworn in as executor in the FLA probate court, to save some travel time. The FLA probate court then certifies the paperwork then sends your papers to the PA probate court. The PA probate court then admits them and certifies you as executor. If there is property in FLA, you may need to have a lawyer file for an ancillary estate in FLA, to handle the FLA property. I would consult with the PA lawyer first.

 

IF MOM IS INCOMPETENT, HOW CAN WE REVOKE HER POWER OF ATTORNEY?

Q: How can durable power of attorney be revoked form an incompetent person? My sister and I have durable co- POA for my mother who is incompetent. Now my sister is suffering from dementia. We have one other sibling.

A: Do you mean how does an incompetent person revoke their POA? An incompetent person has insufficient competency to revoke their own POA. Read the POA carefully or have a lawyer review it for you. The POA either requires both of you to act together as co-agents or allows you to act independently of each other. So, if it allows you to act independently of each other and your sister develops dementia, you can act for mom and you don’t need your sister. If the POA requires you to act together, you have a problem. Since mom is incompetent, she cannot sign a new POA and you will need to file for a Guardianship through an attorney. It would be well worth the consultation fee to have a lawyer look at the POA. If you are co-agents with your sister, perhaps a motion in Orphan’s Court to remove your sister as agent due to her being incompetent, if that is the case, may work. A closer look at the facts will be necessary before advice can be given.

IF MOM IS INCOMPETENT, HOW CAN WE REVOKE HER POWER OF ATTORNEY?

Q: How can durable power of attorney be revoked form an incompetent person? My sister and I have durable co- POA for my mother who is incompetent. Now my sister is suffering from dementia. We have one other sibling.

A: Do you mean how does an incompetent person revoke their POA? They cannot, if they are incompetent. Read the POA carefully or have a lawyer review it for you. The POA either requires both of you to act together or allows you to act together OR independently of each other. So, if it allows you to act independently and your sister develops dementia, you can act for mom and you don’t need her. If the POA requires you to act together, you have a problem. Since mom is incompetent, she cannot sign a new POA and you will need to file for a Guardianship through an attorney. It would be well worth the consultation fee to have a lawyer look at the POA.

My mother committed Medicaid fraud

Q: Hiding assets to acquire Medicaid for a nursing home. My mother put my father in a nursing home after I took care of him for 3 years and blocked me from being his POA. Also, they took all his assets and put them in my sister’s name to hide everything from Medicaid to pay for the nursing home. She is also taking his social security benefits and keeping that money. What can I do to help my father? He do want me to be guardian. Can anyone help me and are they committing fraud? Thank you

A: Medicaid regulations involve a five year look back for transfers of assets without consideration. When she filled out the Medicaid eligibility application, if your mother failed to report transfers of your father’s assets that took place within the five year period before Medicaid coverage was to start, this could be Medicaid fraud. It’s unlikely that your mother is taking his SS benefits, since they likely will be paid over to the Nursing Home. This is a big mess. You should look for an attorney versed in Medicaid law to straighten this situation out. If it is as bad as you say, perhaps you will be favored by the court over your mother if you file a guardianship petition. Most attorneys will work with you on the fee as they will be paid out of your father’s assets under court approval.

Should I cash in my insurance policy to get Medicaid?

Q: If I have a whole life insurance policy. Do I have to cash it in to qualify for MA or do they put a lien on proceeds at my death? I have $300,000 whole life with $25,000 cash value. Do I have to cash in to access the cash value or would they put a lien on the proceeds at my death, in order to qualify for medical assistance to pay for nursing home care?

A: Your question can only be answered with an experienced elder law attorney reviewing all of the facts. Generally, if you don’t want to lose the insurance policy, many insurance policies allow you to “borrow down” the cash value of the policy. Then you can spend those funds in an approved way that will allow you to qualify for benefits. This way, you can retain the benefit of the insurance coverage for your beneficiaries when you pass. You need an experienced elder law attorney well versed in Medicaid regulations to look at your situation and you want to have the insurance company carefully explain your options.

Mom wants to get rid of Florida realty

Q: How can my 71 year old mother get rid of a piece of land in FL.? She can’t afford it on a fixed income. She doesn’t want to use her little retirement that she has. It has to last her for a long time!

A: Questions need to be answered, is there a mortgage? are there co-owners?, is it a time share?. Is mom receiving Medicaid benefits that would be affected by her transferring property without fair consideration? If she owns it outright, she is not receiving Medicaid benefits, with no mortgage, you can sell it, let it go to Sheriff’s sale or donate it to a charity if you can find one who wants it. You should get an appraisal if you are donating it or letting it go so in the future, if called upon, you can demonstrate it was worth very little. You should probably bounce this off a Florida real estate attorney. In one of my estates, we had two lots located in a swamp in Florida that had little value and just let them go to tax sale.