Category Archives: Blog and FAQ

Do you we need to cash life insurance policies for Medicaid?

Q: My daughter is beneficiary of a life insurance policy. The owner just went to a nursing home on hospice. The Executor wants to cash in the policy for the cash value for Medicaid. The owner of the policy is of sound mind. What are our rights? (Pittsburgh, PA)

A: The owner of the policy can do as he or she wishes. It is not the decision of the Executor. The Executor is appointed in the will and only has legal authority after the owner dies. If this person is Agent on a valid Power of Attorney signed by the owner, he or she may have authority to do this if the language of the POA allows it. However, if the owner is competent to make this decision, the Agent must abide by the owner’s wishes and cannot act to the contrary. Perhaps the Executor thinks the owner needs to liquidate this policy in order to spend down for Medicaid? Under section 258.3 of the PA Code, life insurance policy proceeds payable to a living beneficiary are not subject to the claim of the PA Department of Human Services, who manages the Medicaid program in PA. My thought is that if this “Executor” person is trying to do Medicaid planning without the assistance of a lawyer, he or she is taking a risk. Advise this person to seek legal help from an attorney versed in Medicaid regulation.

What kind of trouble am I facing?

Q: I placed a recording device in my ex’s house. I never used it or recorded anything, but they found it and reported it to the police. I was charged with three counts of a felony of the 3rd degree. (Robinson Township, PA)

A: You need to hire a criminal defense attorney immediately. Only speak with him or her, do not make statements about this case to your ex, police, or anyone else. You may have a defense if no recording was actually done. Unless this recording device was placed in the bathroom, the case may be more like a trespassing issue and given the emotions involved with a domestic situation, the case may work itself out. Do not have any contact whatsoever with your ex. Perhaps some counseling before the hearing might benefit you and the situation, but follow the advice of your attorney.

Am I entitled to my Dad’s last will and testament?

Q: I was the beneficiary of my Dad’s military death insurance when he recently passed away. I don’t have my Dad’s last will and testament. 2 other family members have the will though. Am I legally entitled to have a copy? If so, what is the procedure for me to acquire the will if they don’t want to give me a copy?

A: You deserve answers to your questions. If your father died with any property in his name, a house, car, bank accounts, annuities, etc., it may be necessary to open an estate to pass this property on to his heirs. If your family has filed the will, and thus opened an estate, you can obtain a copy from your local Register of Wills. If you are in Pittsburgh, the Register of Wills is in the City-County Building at 414 Grant Street in downtown Pittsburgh. If family members will not share a copy with you upon request, that is unfortunate. If so, don’t despair, you can seek the help of a lawyer. A lawyer can send them a letter and if still no response, have them summoned to court to produce the will by filing a Petition for Rule to Show Cause.

Do Not Resuscitate against my mother’s wishes?

Q: My mother wants to be resuscitated and I am her POA. I informed the hospital where she is now about her wishes. Hospital had an ethics committee meeting and decided that she should be “Do Not Resuscitate”, against my consent. What can be done? Thank you. (Pittsburgh, PA)

A:   Against your consent doesn’t matter, this decision can only be based on what your mother wants. You need to verify more information. Does this POA you reference give you authority to act on her behalf for medical needs? Do you have a separate Medical POA? If you do not have medical powers, the hospital may not be required to release any medical information to you. I think you need to verify if A) your mother signed a hospital DNR card and who has it, B) your mother has a Living Will and who has it (her doctor, the hospital, etc.) C) your mother is competent and if she is not D) does this POA give you authority to make medical decisions. Once you can answer these questions, you should attempt once more to speak with the manager of this facility. If you still get nowhere, hire an elder law attorney versed in nursing home practice to consult with and if necessary retain him or her.

Medicaid and elder law question?

Q: I have been renting a room in an apartment from the apartment’s tenant/leaseholder. The leaseholder is now applying for Medicaid– and to show that there is a roommate (someone who is staying in one of her rooms and paying for that room), the leaseholder is submitting my name, address as well as my phone number in her Medicaid application process. (We are not related.) I guess my information would be listed in her file and I was wondering what implications there might be for me. Would Medicaid contact me for any reason? Would they request more information from me? Would I have the right to ask the leaseholder not to submit my information? Thank you in advance for your help. (Brentwood, PA)

A: Medicaid is just trying to verify her income. Medicaid likely is not interested in your personal information other than the amount of rent you pay and perhaps how long your lease is. Unless you are in the witness protection program, on the lamb for child support or back taxes or a fugitive of some sort, you should help her out.

How am I getting charged with tampering with evidence?

Q: My sister used heroin before I picked her up. She went out in my car I stopped and a car behind me called 911. The guy in the car was helping to get her breathing I was looking for her Narcan. We have Narcan in her purse, in my mother’s home and in her car. In her purse was needles and I never touched them. When a probation officer searched her stuff, a needle fell out her purse onto a busy road. When the fireman found the needle, the cop charged me with tampering with evidence. (Pittsburgh, PA)

A: There is a reason. Their reason will be printed in the Affidavit of Probable Cause section of the Police Complaint, you should have received or will be receiving. It normally gives an explanation as to what the accuser/Affiant saw that prompted the charge. I advise reading this instead of calling the officer directly as you should not make any statements. My other suggestion is to find a lawyer for your Preliminary Hearing so that you can extricate yourself from this situation. I would need to review the charges and the Affidavit of Probable Cause to determine what they say your criminal conduct is.

My wife, unemployed and mentally ill, is being served for credit cards. Options?

Q: My wife had several credit cards that she was paying on when we were dating. She eventually became unable to work due to her mental illnesses and has been unemployed for over a year now. As a result, she was unable to make her credit card payments.  Today, she received a notification that she has a certified letter at the post office from “Court”. She is assuming that this is serving some lawsuit against her but the largest debt she had from any creditor was less than $2000. She is mentally unable to handle stress like this. She has not been able to work for over a year, has harmed herself in the recent past, and has no property or any money to speak of. What should we do in this situation? We have asked to have the letter redelivered tomorrow. (North Huntington, PA)

A: I am sorry for your situation. However, your wife’s unemployment or mental health will not be a defense to credit card debt. My advice is if she owes the money and you can afford it, pay the credit cards that haven’t sued her yet. Perhaps you can call and negotiate a lower payoff. As far as the one who has sent her mail, you need to take the papers to a lawyer for a consultation. If this mailing from the “Court” is a Civil Complaint, you need to answer it in 20 days or she could lose by default. The attorney may advise to pay it, or may assess whether she has a defense or not. Many credit card claims are defensible, for example, there is no contract or the original contract has not been properly assigned to the present creditor. If the credit card debts as a whole are not able to be satisfied at this time, you may want to talk to a Bankruptcy attorney.

How? What?

Q: My mother had a stroke and is unable to care for herself. My father passed away 4 years ago. I’m their only child. How can I get power of attorney? Am I able to take over the house they lived in? Neither one had a will or living will. There is more I want to ask and know but I either talk on the phone or in person. (Turtle Creek, PA)

A: You need to find a local attorney who handles wills, POA’s and estates. Find someone who will give you a free or low-cost consultation. Your mother can only sign a POA or other documents, if she is competent. If she is not, you may need to have an attorney petition the court to be her guardian. If mother is competent, an attorney can prepare a POA, Will and Living Will at a reasonable cost.

Criminal investigation?

Q: Two co-workers and myself are under criminal investigation. We work at the local county jail and are accused of purposely causing a laceration to an inmate’s head. We are unsure when the inmate cut his head during the escort. Nor was it on purpose. We are unsure if the inmate struggled with us during the escort or was tripping on his own feet. We went through seven doorways which are the width of a normal house door and with a bent over inmate and 3 CO’s trying to not let him fall and keep control. Local state police detective keeps calling to try and get the other two officers to turn on me but they tell them the same thing that it was an escort that turned bad because of the inmate. It’s all on camera and multiple people saw it and said they’re unsure of what we’re being accused of. The detective even tried making a deal with me saying take a summary harassment AG’s will take it and charge all of us. It’s been 4 months and just recently the police detective called again and told my coworker to turn on us or all three of us are going to get charges. Our union attorney said there’s nothing but we’re tired of the suspension and scare tactics and it’s harassing.

A: This could be a very serious situation, so you should cease discussing it on the internet. The answer from any criminal defense attorney would be standard at this point. Do not make any statements to anyone, police or civilian, and find yourself a criminal defense attorney. Share all the facts with your attorney and only speak with police or enter a deal under advice of counsel.

Can I write my ex, who was my co-defendant, if the case is closed?

Q: Me and my ex caught some serious charges of robbery and burglary. I got a lesser sentence because I did not enter the house. He got sentenced to state prison. Now that the case is closed am I able to write him at least? I am currently on two years-probation for this case. I have lots to tell him and I would like to write to him. (Clymer, PA)

A:  If it is not a condition of his or your probation to have no contact, you probably can. You may want to ask your attorney before you do so. If you state things in writing relating to the case that would be contrary to your prior sworn statements, it could open you up to criminal prosecution (i.e., False Statements to Law Enforcement or Perjury if you ever testified). Please remember, the mail is opened at the jail before he receives it.