Category Archives: Blog and FAQ

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 a copy grandmother’s will?

Q: I have personally seen my grandmother’s will. She had copies in her house. She had a stroke and my aunt moved her out of state to a nursing home in Tampa Florida. She has since passed away, two days after my mother (so no help getting info from her). I believe my Aunt maybe trying to hide the fact my grandmother had a will. I know her grandchildren were left a fair amount of money. My aunt is also POA. (Pittsburgh, PA)

A: You will need to hire a lawyer in FLA to investigate and possibly file a court action. Before you do that, you can call and check what the procedure in that county is to see if a will has been filed. They may have a website, or you may be able to get an answer on the telephone. If a will has not been filed and you truly believe there is one, the attorney can begin to request it in writing from your aunt and if unsuccessful, he can petition the court to order her to product it. Having an attorney involved will cost you money.

Can I do anything to stop this? Please help!

Q: I have a judgement against me, I did not go to the hearing over a year ago and the judgement went through. Now I am receiving papers from a law firm, Interrogatories for Discovery of Assets in Aid of Execution. Is there anything I can do to appeal or stop this?
My ex-husband bought items on one of my cc cards. We divorced, and I was left with a hefty amount due on the credit card. So, that is why I did not pay it in the first place. But now I’m here, and shame on me. Thanks. (Shaler Twp., PA)

A: Yes, if you have allowed a judgment to be entered, you are way late to appeal. There is a procedure to get back to court which involves filing a Petition to Open Default Judgment. I am not sure if the facts in your case would support this legal procedure, which will involve hiring a lawyer and incurring legal fees. If the judgment is something you can pay, you may want to work out a settlement agreement. Consult with a lawyer.

My mother died in FLA without a will

Q: My sister who lives in FL (I’m in PA) got an attorney and become the executor. It seems the lawyer is not working with me and will not talk to me. I think I need to get my own lawyer and if I do, will my portion of the estate have to pay both? I never signed anything. Also, can the executor avoid going into probate as she is not dividing the estate equally. I also know she uses marijuana. Can I ask for a drug test and get her removed as she is not making good decisions? Any help would be great appreciated. Thank you. (Pittsburgh, PA)

A: If an estate has been opened in FLA and your mother died without a will, you are likely to be an heir under FLA law if there is anything to inherit. If the attorney for the estate is not responding to you, that is not good. I would send him or her a certified letter containing all your questions. If you get no response, you may want to see if the county has a probate court website for you to look for her estate or call the Probate Court and see what you can find out. If your inquiries are not satisfied, you should call a lawyer in that county who handles estates. There is a process involved in petitioning the court to remove an executor. An attorney in FLA can advise you if this is necessary.

My mother died with no will, a car and $1000

Q: She has no spouse. She has about $1000 in a checking account and an older car, Blue Book Value $2000, which is currently sitting in our driveway. We are not using it. The registration is expired, and it requires repairs. She has no life insurance or other assets of any kind. Her current medical bills/nursing home payments due will wipe out the checking account. We have limited resources after caring for her for years and cannot afford a lawyer, court fees, etc. We would like to pay off her debts as far as possible utilizing her assets. How can we do this legally without incurring expenses for ourselves? Is there any way to just walk away from this and let the creditors and state figure it out? (Pittsburgh, PA)

A: Assuming she has $1000 and an old car, you might want to do nothing. You can get the $1000 from the bank under section 3101 of the Probate, Estate and Fiduciary Code if you are a child and go to the bank with a copy of the paid funeral bill and a death certificate. The car can be sold through AAA or other motor vehicle transfer agent. It will cost you thousands of dollars to open an estate and then you will be harassed by creditors. If your mom received Medicaid, hang on to the $1000 for about a year to see if the PA Department of Human Services will file a Medicaid claim against her. They can claim the $1000 as an exception to Rule 3101. You can file an inheritance tax return and “0” it out as I am sure someone paid more than $1000 in funeral expenses which are deductions. Again, you could do nothing and leave the money sit. You will have no personal liability. Her estate, if someone opens one, is the only party who will owe her bills.

Will son’s underage drinking citation expunged in OH be a second offense if cited in PA?

Q: My son pleaded guilty to underage drinking on a college campus in Ohio Labor Day weekend of 2017. He did the diversion program to completion and submitted paperwork for expungement. It is currently dismissed and should be complete by June 1. Unfortunately, he ran into trouble visiting friends in PA this spring and was cited by a campus police officer for underage drinking. Does he have to disclose his expungement in OH to a judge if asked? Will it be considered a second offense if it happened in a different state? Or considered first offense in PA? the officer told me he would only be asking the judge for community service time at the time of his hearing. Should we ask for a continuance until after the Ohio expungement is finalized before having the hearing in PA with the campus officer? (Pittsburgh, PA)

A: If the prior case happened in PA, the police on the new case would be able to see he had a prior citation for a 6308 offense. Therefore, he would not be eligible for a second chance at a diversion. You would think that police could not find the first case, because it was expunged, but District Attorneys seems to be able to access cases that are expunged. Whether the PA police will be able to see the prior Ohio citation, I am not certain. Your son has no obligation to offer the fact that he does have a prior. Only if he is sworn in to testify and is under oath and asked by the District Justice here in PA, would have to tell the truth. At his new hearing, let the officer tell you if a diversionary program is on the table, and if it is, jump on it.

Do I need to probate my mom’s estate?

Q: My mom passed away two years ago. She lived with me and I paid all her bills. I paid $13,000 for her funeral expenses. Recently, I received refunds from the hospital for approx. $2000 in checks for copays when my mom was paying. I helped her pay them. I didn’t probate the estate because I was told it’s insolvent and there wasn’t any need to do so. Now I have these checks made out to her name. What do I do? The $600 in her bank account was split between myself and my brother. The credit cards are still unpaid, but they were told her estate is insolvent. Where do I go from here? (Pittsburgh, PA)

A: To answer your question I would need more information on the extent and type of assets and debts. The Estate Recovery program managed by the PA Department of Human Services can seek recovery of monies paid out to a Medicaid recipient, from their estate. If there no estate opened, it is doubtful if they will pursue recovery. However, they can go after other monies held in your mother’s name with others. You may want to consult with an attorney to determine if it is worth opening an estate. From what you describe, it may not be. You have no duty or obligation to open an estate.

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.

First offense, no criminal record, am I going to jail?

Q: I called the Attorney General’s office yesterday and was told it looks good on my behalf that I’m already making payments towards case. I don’t want to go to jail. I do not have a criminal record, and I honestly do not remember receiving LI-HEAP energy assistance. I honestly do not remember but I believe I was getting child support at that time! However, I do not honestly recall Wesley living here in 2015 or 2016. I believe at the time he was living with his then girlfriend in Maryland but am not sure. I do suffer from ADD and am taking medication for it. (Everett, PA)

A: I do not practice law in your county. In my county people generally do not go to jail for welfare fraud or similar crimes unless the case involves a lot of money and the behavior is indicative of true criminal intent. You need to be represented by an attorney. You may be eligible for a first-time offender’s program called ARD, especially if you can make payments within the limits of your probationary period.

New DUI with refusal. DUI about 22 years ago.

Q: My husband has a suspended license. He hasn’t had a license in 22 years since his first DUI because he never got it back. He just received a DUI and refused breathalyzer. Will he get house arrest, or will he get jail? We need him at home to pay the bills.

A: Since ten years have passed since his first DUI, this will count as a 1st DUI. The statute calls for 72 hours to 6 months of incarceration because this is a “refusal” and a $1000 to $5000 fine. His driver’s license will be suspended for 1 year on the DUI. He will likely be cited with section 1543 b of the Motor Vehicle Code for driving under a DUI suspended license. This will result in another license suspension of at least one year. Since he has no license, this means that he will be unable to have driving privileges for a period of at least 2 years after he applies. He is not going to jail and will likely get 3 nights in DUI Hotel or house arrest for 6 to 12 months, in addition to fines, costs, a Drug and Alcohol assessment and classes. The penalties for driving under a 1543 (b) suspended license are 60 days in jail and a $500 fine for the first offense. I would invest in an attorney for the Preliminary Hearing and try to get the 1543 (b) dropped to a lower offense so he avoids the additional year of suspension. Riding a DUI bicycle for one year is better than two.