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.
Q: My father’s second wife passed away in March 2016, at which time my sister immediately had her children, ages 20 and 22 move into one of his houses under the stipulation they were to check on my father every day and pay the cable bill. They have done neither. My father pays their bills unknowingly, and my sister, as trustee, won’t give my father a copy of his will and trust so he can see what he signed. With the exception of my brother and I, the rest of the family constantly lie to my father about issues concerning his health, driving, and legal issues. Due to his early stage dementia, this causes more confusion for him. My sister (trustee) has stated a couple of times that she wished our dad would die. Doesn’t that constitute elder abuse? (Glenshaw, PA)
A: With early stages of dementia, your father can still be competent. If so, it is up to him to allow the grandchildren to live in his house and allow your sister to be an influence. If he made her trustee of his trust (if that is what you mean) he must trust her to some extent. However, as Trustee of his trust, she has an obligation and duty imposed to preserve trust property. Allowing her children to live in your father’s house for free does not sound she is acting in a fiduciary capacity. If you feel he is being taken advantage of, have a talk with him. He can always make you and/or your brother Agent under a POA if he is still competent. If he should digress to the point of being incompetent, you and/or your brother can file to be his guardian in court. If the sister also wants to be his Guardian, you may have a contested guardian hearing. In addition, if you believe she is mismanaging the trust, your lawyer can file for an accounting of that trust with the court. You will need the advice of a lawyer to handle these procedures.
Q: Our Dad is deeply involved in a financial scam. He has sent between $6,000 and $15,000 to scammers for “taxes” for the prize he has won. He has had 3 months of Social Security checks diverted to some jagoff we don’t even know. He has finally admitted he was deceived but still talks to them on the phone and still talks of sending them money. Sometimes he seems fine mentally and other times he doesn’t. So far, Dad hasn’t agreed to POA, but we think he is coming around. We don’t know if that will be strong enough. What should we do? (Pittsburgh, PA)
A: It is a delicate situation. If he is competent to sign a POA and you can get him to, you may be able to safeguard his bank accounts in such a manner that he cannot withdraw without your (the Agent’s) approval. However, if he will not sign one and/or is beyond control due to dementia, you may need to have a family member appointed as guardian. Being guardian will provide more control of his affairs. However, a guardianship requires court involvement and monitoring. I suggest a consultation with a lawyer who handles guardianships.
Q: There are multiple issues. My mother lives in the District of Columbia and has serious mental health issues, but she chose me as her Personal Representative in her will many years ago. I believe she is in the early to middle stages of dementia and believes I am her enemy, so she may designate someone else besides me to be her Power of Attorney in general and for health care. If she does this, does this action trump me as her Personal Representative in her will? If so, will I need to apply for guardianship and conservatorship if this happens as she continues to mentality deteriorate? Right now, she has some capacity, but has demonstrated that she cannot take of herself. She is a hoarder. She is not able to wash her clothes. She has apathy concerning her hygiene and living in a clean and sanitary environment, and she will not allow anyone into her house to assist her. At some point, I know that I will need an attorney, but I am not sure when to do this and how to help her. (Pittsburgh, PA)
A: An executor of a will handles the affairs and assets of a person after that person has died. The executor has no such power prior to the death. An agent on a power of attorney has power to act on behalf of a principal while the principal is alive but has no such power after the death. The agent on a power of attorney must act in the best interest of principal and in accordance with the powers specified in power of attorney document. My advice would be to meet with an elder law attorney and have your mother assessed for competency. You can also ask her physician to give you such opinion. If deemed competent, she can execute a power of attorney in which an agent is designated to act on her behalf. If not deemed to be competent, she cannot execute a power of attorney. If there is no power of attorney in place and she continues to deteriorate, you or another family member may have to petition the court to become her guardian. This will require the assistance of an attorney.
Q: My mother is 80 years old and showing signs of dementia. 14 years-ago a man lived in her house. Throughout those years my mother lived with uncertainty and anguish because this man is alcoholic. am vacationing in her house now. But the man harasses me. I want to leave the house but I cannot bear to leave my mother in her situation now. The man does not work. He claims that he is a paid caregiver of my mother. But now he controls her finances. She derives her income from a survivorship pension from her husband a federal employee who passed away in 1994.
A: This is a difficult situation. I suggest you speak with a local attorney who handles elder law and guardianship. Yes, mother can appoint you as her agent on a Power of Attorney, if she desires to and she is competent. If you feel she is not competent and being exploited, you may need to file a petition in court to be her guardian. This would give you power to have this man removed from her life. You may also want to contact Adult Protective Services to see if they will do a home visit. Their input and direction may be helpful.
Q: My ex husband has dementia, cancer and emphysema. He is in a nursing home, temporarily. My two daughters who will oversee him are both disabled and really need advice on what to do. Do they need a lawyer? They are overwhelmed and don’t know what to do. Thank you.
A: You should speak with an elder law estate attorney immediately. You may need to find another POA or Guardianship Petition, other than your children. If you cannot find such person or another family member or trusted friend, the court can appoint an agency to do this. You really need to discuss these options and other concerns, such as Medicaid, with an experienced estate attorney.