Tag Archives: ELDER LAW

How can I have my 93-year-old mother declared incompetent?

Q: My sister and I have had joint POA since 2013, but not immediate. We have never exercised any POA. I have been taking care of her, although she is in an “independent living” place. I do her finances, her shopping…she should not be alone any more, as her health and mental condition are both deteriorating. She cannot live with me. My sister and her husband are willing to have her move in with them in another state, until a nursing home or hospice is the only option. She does not want to go, but at this point it cannot be her choice anymore. Ten years of my life are gone. (West Mifflin, PA)

A: This is a difficult situation. If your mother is deemed to be incompetent to manage her own affairs, you can file to be appointed her guardian. Until then, she can make her own decisions. You really need to sit down with a lawyer who handles guardian work and share all the facts.

How many years does Medicaid go back for recovery of benefits paid?

Q: Elderly mother has been in nursing home for 2 years. She has used ALL her life savings to pay for it and is now out of money. She receives Medicare but not Medicaid, yet. She owns a very small home that was her marital home (husband is now deceased). She did own family farm that included old family home and acreage but transferred that to her children in 2016. If she applies for Medicaid, can they seize the family farm property to recover benefits paid for nursing home? (Delmont, PA)

A: The Department of Human Services of PA examines all transfers of property done for no consideration or for less than market value by an applicant in the 5-year period preceding the application. If the transfer of the farm to family was a gift, this could subject her to a penalty and consequently delay her ability to receive Medicaid. This are of law is very complicated. You should seek an opinion from an attorney who is versed in Medicaid regulations. He or she will need to know more facts than you have given us here to properly assess your situation.

Mother in a nursing home. Can her guardian sell our house?

Q: I have lived with my mother my whole life. I have cared for my mother the last 15 plus years. My brother had power of attorney though and put her in a nursing home 20 months ago. She is getting low on funds and the guardian wants to sell her house. I am not on the deed, but left the house in her will. Can they sell her house if she needs Medicaid? Can they wait until she passes and then sell her house? I was told that she can still own a home and be on Medicaid and sell the house after her death to pay back Medicaid.

A: You may be OK, but I cannot answer this without much more information. It sounds like her liquid funds are depleted and now it is necessary to sell her home to spend down to qualify for Medicaid. Her guardian may in fact have a duty to do this. It would be good to know if she is considered able to return home. Another thing for you to consider is what was referred to as “undue hardship” under DPW (now DHS) rules. This applies if you have lived with your mother in the home as her caretaker for a two-year period prior to her hospitalization. If so, the home may be excluded as a Medicaid asset, at this time, and you could remain residing in the home.

How can I get power of attorney revoked?

Q: My mother has her boyfriend as her power of attorney. She has become ill but can very much speak on her own behalf and make her own decisions. The boyfriend is not allowing her to have a choice in any decision from what clothes she needs to wear to which credit card to use for a purchase to what she feels like eating for breakfast. He speaks to her as if she is a child and threatens to take things away if she doesn’t do what she’s told. I need to know what steps come first in this case for me to follow. (Pleasant Hills, PA)

A: More information is needed for me to understand the entire picture, but I can give you some general advice. A Power of Attorney can be revoked in writing by the Principal. If your mother is competent, she can sign a written revocation of the POA and have the revocation delivered to any financial institution, hospital or entity in which the POA may be on file or who may have relied on it. It needs to be your mother’s wish to revoke the POA. If she is conflicted because of her relationship with this man, you may want to investigate other measures, such as a guardianship. If that is the case, I suggest that you take her to an attorney and if she resists, consult with one yourself.

Can I create a living trust or will with my mother’s POA?

Q: My wife and I have been resident caregivers for the last six years of my aging Mother of 90 years of age. She assigned me as her Durable POA approximately seven years back. She is now mentally incapable of making decisions and is approaching hospice care. I would like to designate who and where her final assets (Home and less than $150T cash) would go upon her death. There are siblings involved. She has stated to us in the past how she wanted her remaining assets to be divided. Is her POA within my scope of authority? (Mt. Lebanon, PA)

A: I suggest a consultation with a lawyer. Generally, a Power of Attorney does not allow an Agent to create a trust or a will for the Principal. However, if the Power of Attorney you reference contains the appropriate powers, you may be able to set up trust or similar accounts which will achieve the result you are looking for. I would take the POA to an estate and trust lawyer for review.

How do I transfer assets to an elder parent if I die first?

Q: I am an adult only-child (age 42), and my retired mother (age 68) has no blood relatives other than me. If I were to pass before her, I want her to be protected financially. I currently have her as the sole beneficiary to one of my life insurance policies and one of my investment accounts. My husband is the beneficiary of all other insurance policies and financial assets. For estate planning purposes, what is a good vehicle to consider, for securing that the assets that are designated for my mother provide not only a secure income but also cover basic needs that may arise (ex: home, medical care, long term care, transportation)? (Cranberry Township, PA)

A: A complicated question which cannot be answered without much more information including your mother’s health, the value and structure of her assets, her income, your health, your husband’s health and the value and structure of your assets, etc. It would generally be inadvisable to leave these assets directly to her via the testate process or non-probate succession given her age, especially if she has health issues. The consequences could result in ineligibility for Medicaid and VA benefits, if applicable. A revocable living trust with beneficiary designations aligned with the planning is generally advisable. Again, seek a consultation with an attorney.

Can I get a POA over mom without her knowledge?

Q: My 89-year-old mother has been diagnosed with severe delusions and after a psychological and medical evaluation, a letter was written stating that she is suffering from delusions and is not capable of handling her financial affairs. With an attorney in my presence, my mother stated that she would never let anyone take over her financial affairs and stated that she would not live. My mother believes she is a CEO of a company, married to someone that does not exist. Her only source of income is social security around $960 per month and most of it is used to set up business phones. Banks accounts were set up as business accounts even though the name she sets it up is different than her ID. There is other devastating and crazy actions that consumes all her SSI. Her current doctor will write another letter regarding her delusions and she is currently taking medication for delusions. Is it possible for me and my sister to get a Power of Attorney without our mother having knowledge of it because it would harm her and could make her have a stroke or serious medical issue? We heard from other families with the same situation that they have done it. Is so who can do it and what is the average cost and time frame? (Pittsburgh, PA)

A: No, you cannot get a Power of Attorney over someone without their knowledge. The person must be competent, understand what they are doing and sign the document. Your mother sounds like she may not be competent to sign such a document. If that is the case, your only option would be to file in court to be her guardian. Your mother certainly would have to know about this proceeding as she would be summoned to court unless excused for health reasons. You should consult with a CA lawyer in person.

Will I lose my house?

Q: We built an in-law apartment onto our home with proceeds from the sale of their home. If they need to be moved into a nursing home before five (5) years have passed, will they or us need to come up with the full amount of money generated from the sale of their house, necessitating the sale of our home to recoup the $53,000 spent on their apartment, before Medicaid will pay the rest of the expenses? Or does Medicaid accept/require the remaining monies only? (Pittsburgh, PA)

A: You need to consult with an attorney who is versed in Medicaid regulations. Generally, the idea is that any transfer of wealth, without fair consideration (like gifts) within five years of the Medicaid application, can render the Medicaid applicant ineligible for Medicaid funding to the extent of the value of the transfer. It is not the nursing home that triggers the 5-year look back but the Medicaid application. If you are saying that they liquidated their home, to pay for an addition to your home so they can live in it under your care, I am not sure the entire value of the addition is a gift as they are receiving consideration in the form of housing and care. An attorney can also advise you on a caretaker contract which may help you shelter some of the in-law’s estate.

If a minor’s case gets tossed in district court can they still charge in juvenile court?

Q: My 17-year-old son pulled over 12:46am for having a break light out. Cop said he didn’t have insurance, but I did, it’s my car, His mom I just bought it 10 days prior and just didn’t get around to dropping old and adding new car with our insurance agent. They searched car found small amount weed, a bong, papers and e-cigarette devices. Now, I get 2 fines for district court no brake lights no insurance, but it’s addressed to the defendant with my first name and my son’s last name. The cop wrote it this way on the ticket, so I am fighting the ticket. If they drop these tickets can it go to juvenile court? Since the district dropped I don’t understand why 2 different courts are charging with the same offenses. (Duquesne, PA)

A: Your question is a bit confusing. It really depends on who is charged in each action. If you are charged on the Motor Vehicle traffic summaries, and your son is subsequently charged in juvenile court for the reefer, then that is permissible under the rules. However, if your son is charged with Motor Vehicle summaries, enters a plea of guilty, or is found guilty or not guilty, an adjudication occurs. The police cannot then charge him again for drug offenses arising out of the same set of facts. There are Rules 109 and 110 of the PA Rules of Criminal Procedure that address this. It is basically a double jeopardy situation. I would consult with a lawyer for a precise answer as I am not looking at your charges and am not sure I have all the facts

Can a person with a revoked license buy a car?

Q: My dad is elderly and is an ex-alcoholic with a revoked license (habitual offender). He wants to buy a van, so I can drive him to the store and appointments and frankly, take him to and from the bar. Can he buy a van from a private seller and register it and get insurance? I would just have him write me a check and buy in my name, but I don’t want my relatives to act like he is gifting me money. We just want to buy like a $1500 van.

A: If you have a valid driver’s license, current insurance, and the car will be registered to you, I don’t think your father is breaking any law that I am aware of merely by writing the check. If he not only wants to pay for it, but also register the vehicle and obtain insurance in his name, I believe he can. He just cannot drive, obviously.