Tag Archives: COMPETENCY

Can I still record a quitclaim deed my sister signed four months ago?

Q: My sister signed a quitclaim deed transferring her property to me in December. I hadn’t recorded the deed due to not having money to pay the property taxes. Now she has dementia and is under state guardianship. Is the quitclaim deed still valid? (Pittsburgh, PA)

A: If she was competent when she signed it, it is a valid deed. It just has not been recorded yet. You can file it now. However, there are other factors you need to be aware of. In the event your sister may need Medicaid funding in the future, this transfer could have her penalized and ineligible to receive such benefits. You should consult with an attorney versed in Medicaid regulations.

Can an elder with mild dementia revoke her Power of Attorney?

Q: My mother signed a durable POA and a health directive just six weeks before two Drs declared her incompetent in 2016. Her agents are also her trustees. Isn’t her trust now irrevocable? These two, my siblings stuck her in a home against her wishes prematurely and are now abusing their responsibility, claiming they can as POA make trust changes and do not have to give an accounting either. Mom also signed on the directive that the agents can’t be questioned by anyone. This is horrible. Her symptoms are mild. They are acting directly against her wishes. Her trusted attorney I used to talk to has passed. I am prohibited from acting as trustee, but I have two petitions filed in pro per. I think the facility she is in is not properly licensed for her health needs. Can I file ex parte for a guardianship just related to her health and placement? I can’t afford an attorney. They have trust funds for theirs. (Oil City, PA)

A: How was she declared incompetent in 2016 and now just has mild dementia? Normally it is reversed. However, mild dementia normally does not render someone incompetent to make decisions that affect their life and to sign important documents. I would consult with her physician as to whether she is now competent. If she is competent, she can act on her own, and revoke the POA in writing. Once done, she can fire the two Agents on the POA, your siblings. As to whether the POA allowed your siblings to make changes to a trust, that is dictated by the language of the POA. Under the new POA statute, effective 1/1/2015, that power must be specifically granted in the POA document-the power to alter trusts. Even if the POA was written prior to the new statute and therefore grandfathered in, the POA should have some language authorizing such power. There are many issues here and I strongly suggest you seek an attorney to consult with. If the attorney advises that your actions may have merit in court, the attorney may be able to be paid from your mother’s funds.

What type of attorney handles fraudulent transfer agreements?

Q: My late father had dementia as all his extensive medical records show. His MD told me on the phone that my father had not been not competent enough to sign any financial documents for the previous 4 years before his death. My father could not write well or speak clearly, and he was mainly in bed. My father’s emails show that an attorney had been contacting him urging him to sign this TOD, yet my father seemed annoyed at these requests. The attorney went to my father’s home and wrote out the entire TOD agreement for my father and had my father scribble ONLY his name to sign the agreement with his financial institution (a stock brokerage/bank) so the agreement was between my father and his brokerage. There was no independent notary observing this interaction as the attorney was also the notary. I am the executor of his estate and his only child/only legal heir and do not believe this is fair treatment of someone who had dementia and should not have been signing financial documents. Is a contract law attorney or “will dispute” attorney most efficient at handling this case which is in the federal court as an interpleader case with the other beneficiaries suing too? (Pittsburgh, PA)

A: The matter sounds complicated. If litigation in Federal Court has begun, you need to have an attorney or may forfeit your interest. If you have a medical opinion that states your father was incompetent when he signed the transfer, you have the beginning of a good case. I think you need an experienced estate attorney who also handles litigation in Federal Court. This is an unusual combination. The other more realistic option is to hire an estate lawyer and let him bring in a Federal Court litigation attorney as co-counsel. Good luck with your claim.


Can an elderly relative change their will if demented?

Q: My Aunt’s property was left to a nephew and his wife and family. Other family members have been talking to the aunt who has dementia and now she has changed the will. Is this legal? (Pittsburgh, PA)

A: Your aunt can only change her will by executing another one, a new will, which is in compliance with the law. Plus, she can only execute a new will if she is competent. Dementia does not necessarily mean she is incompetent. There are varying degrees of dementia. If she executed a new will and you are suspicious of the circumstances, you should review all the facts with an attorney.

My father is in assisted living with Alzheimer’s What do I do with his car?

Q: The car has been parked in front of his condo (which we will eventually sell) for months. We would like to drive the car and keep it at our house. Do I need to transfer title, or can I just put the car on my own car insurance? I am his financial power of attorney, and do not want to do anything unethical. (Hermine, PA)

A: There is a larger picture here that any lawyer would need to know before giving you a definitive answer on what seems like such a minor thing. We would need to know if your father is incompetent. If so, the transfer would need to be through the POA. Very generally, if your father has any foreseeable need to apply for Medicaid in the next five years, a transfer of this vehicle out of his name could subject him to a Medicaid penalty to the extent of the value of the transfer. If Medicaid is not an issue more information would be needed on who the potential heirs of his estate are. If these heirs would ultimately object to transferring the car into your name via the POA (if the POA authorizes such transfers or gifts), as a gift, then it may be an issue. Even using the car which will ultimately be estate property, could be objected to. If you are confident you have no potential Medicaid issues, and you are the only heir, there is less risk here, but I would still consult with a VA attorney.

Can POA withdraw money from his accounts?

Q: My 92-year-old roommate’s son has become gravely ill. A week or two after the onset of his illness the daughter had him signing all kinds of forms. She froze his bank accounts and I believe she has moved all of money to a bank in her city. (Oil City, PA)

A: I am thinking that you are asking if your 92-year-old roommate’s daughter can move or transfer the son’s money. She can do so if he was competent when he signed “…all kinds of forms…” and one of those forms was a legal general durable power of attorney which authorizes her to do such acts. If you feel this is not the case and he may be the victim of elder abuse, call the local Department of Aging and ask them to visit and talk to him.

Do I need power of attorney or just temporary documents?

Q: My 48-year-old daughter is in hospital on a ventilator. She has been diagnosed with Castleman’s Disease. She has other other issues as well. She is not married at this time. Her children can’t handle her business affairs. I’ve been asked to handle her bills, and business matters. I am in the dark as to what I need in writing if anything at this point or can I just make decisions? (Pittsburgh, PA)

A: I am so sorry. If she is mentally competent, even if she cannot speak, she can execute a financial Power of Attorney which will allow an appointed person to manage her financial affairs. She can also execute a medical power of attorney. If she is not competent, you may need to establish a guardianship over her. I would consult with an attorney who can more fully advise after gathering all the facts.

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.

Do I return the money?

Q: I got a gift from elderly person. On the check memo it say “gift”. Now he in nursing home and his niece ask me to give money back. I worked for this elderly couple for three years. She is gone. (Pittsburgh, PA)

A: More information is needed. Most importantly, was the elderly person lucid and competent when they made this “gift”? If not, many problems can arise for you. You can possibly be charged with a crime or investigated for elder abuse or sued in civil court. It all depends on the ALL of the facts. If this is a significant amount of money I would consult with a lawyer and do not spend the money until this is resolved.

Insurance company is suing my 90-year old dad with dementia?

Q: A homeowner’s insurance company insuring my downstairs neighbor’s unit has summoned my 90-year-old father to court on a 4K claim of subrogation for a leak to the neighbor’s unit. Insurance paid out and is now suing my dad for the 4K when he is in a Nursing Home on Medicaid 24-hours away with 7 years of dementia. I cannot find any lawyer in the area to represent him and cannot figure out what other steps to take on the case. There are no options to pay out or settle out of court. I have presented documents proving he would not be fit to stand in court that day. Any suggestions? The court date 5 hours drive from my home and 5-hour drive from dad’s Nursing home. (Monesson, PA)

A: Is he the building owner? How can he be on Medicaid if he owns a building? Having dementia, does not necessarily mean he is incompetent or relieved from testifying. Why doesn’t he have insurance? Regardless, if your father is incompetent to testify, or just due to physical and medical reasons cannot come to court, you may be able to have his presence excused. You may be required to get a court order if you want him to be totally relieved of testifying. If you are relieved of only the duty to have him come to court, a judge may allow the insurance company to take his deposition. If you can get a guardian order or judicial determination that he is incompetent to stand trial, they he would be relieved of all testimony-deposition or trial. I would need to know many more facts to properly advise.