Tag Archives: ELDER LAW

Can we lose our home?

 

Q: My spouse and I have lived on family land that is owned by my parents for 26 plus years. We pay our own property tax however it is on family land that has never been deeded over to us. We were told 26 years ago that the land would be divided between us siblings. My family is the only one who lives on the land. My dad is now disabled and uses a walker and my mom is not able to take care of him and is in very bad health. He is looking at going into the nursing home. We are worried about what will happen to us since we live on the land that isn’t deeded to us. Do we have any rights after living here for so long? (Pittsburgh, PA)

A: The only way for you and your husband to get ownership of this property is to have your parents deed it to you now, or pass it to you through their wills. With either method, they need to be competent to do so. If they are presently competent, they should do this now before their health declines, if it is what they want to do. However, this decision must be made with full knowledge of Medicaid implications. If either parent should need to apply for Medicaid funding all transfers of property within the preceding five years are scrutinized. If property is gifted or sold for less than market value (gifts to family) it could subject them to a Medicaid penalty. Therefore, only do this type of estate planning under the advice of an attorney versed in Medicaid regulations.

Can I be POA for parents if I have past IRS issues?

Q: My dad is 90 and my mom is 87. They are no longer capable of h handling their own affairs. I have been asked to take over as power of attorney by their friends. My only problem is, I have federal tax issues dating back ten years. Is there a risk that the IRS could get my parents life savings if I become their power of attorney? (Pittsburgh, PA)

A: The short answer is no. Generally, when acting as an Agent for the Principal under the legal parameters of a Power of Attorney, the Agent is acting in a fiduciary position and is not personally liable. The Agent should have not personal liability for the debts and expenses of the Principal. The Principal’s assets should not be subject to claims of the Agent’s creditors. It is only when the Agent acts outside the scope of his authority of the POA or acts illegally, can the Agent be subject to personal liability.

What can be done about my mother who is legally separated from my father?

Q: My father had a massive stroke two weeks ago and my mother has basically taken over the entire situation. He is not well, and needs someone to assist with his care and recovery, not hinder it. She does not allow him to talk for himself, she has told us all to leave them alone and that she is taking care of him. She recently returned from a two year “vacation” in Arizona, because that was what was best for her. I have two other siblings who feel the same way about the situation and we are wondering where we may stand. From a legal standpoint, do we have any footing to get her removed from the situation? (Greensburg, PA)

A: A complicated situation. If he is competent, you can have him sign a financial and medical Power of Attorney to you or another sibling. However, if he is not competent, or if the POA causes such a conflict with your mother that it creates problems for service providers, you may need to file to be his guardian. My suggestion is to have a comprehensive consultation with an elder law attorney as many more facts are needed to determine precisely how to deal with the situation.

ELDER LAW, POWER OF ATTORNEY, GUARDIAN, SPOSUSES, SEPARATION

Should we seek POA or be his Guardian?

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.

Will a Financial Durable Power of Attorney cover my incapacitation?

Q: I have crafted my accounts, etc., to be transferred to my children, equally, upon my death. In the event I am incapacitated before I die, is a Durable Power of Attorney for Finances and Advance Directives enough to give my children access to my accounts without having to create separate accounts with their signing authority already on them, and authority to manage my care? (McMurray, PA)

A:  Yes, a legal General Durable Power of Attorney should empower an agent to do the things that the principal wants the agent to do. However, it is better if these things, which are called, “powers”, are listed as specifically as possible in the document so that the agent’s authority to exercise such powers are not questioned. My suggestion is to consult with an attorney in drafting a POA so that it will be customized to accomplish what you want it to. As mentioned, a POA is a very powerful document and if misused, can lead to problems with taxes and Medicaid, to mention a few. As to an Advanced Directive, that is a medical document that comes into effect at the end-stage of life. It should have nothing to do with your finances.

If a person is power of attorney of their grandfather, can they give themselves gifts?

Q: Co-worker has power of attorney over his grandfather’s finances. Since then he has spent over $400,000 on buying himself vehicles, a boat, property, and other personal items on himself. The grandfather is being kept in nursing home. We are wondering if he can legally use the money this way, while his grandfather is still alive. (Bethel Park, PA)

A: It does not sound right as there is a strong duty for the agent to only act in the best interests of the principal. However, if the POA document states in writing the Agent can make gifts to himself, then it may be permissible. However, even if the agent is authorized to make gifts to himself, he may be liquidating funds that might be needed in the future to maintain adequate health care. This would be a violation of his fiduciary duties. Such spending may also jeopardize the uncle’ eligibility to receive Medicaid funding if he ever needs it. Therefore, even if gifts to himself are permitted, he would not be acting in the interests of the principal by diminishing the principal’s liquid assets. If you want to get involved, you may want to call Adult Protective Services to assess the situation.

Does a Power of Attorney trump a Personal Representative in a will?

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.

Can my elderly Mother change her “Will” if she is of sound mind?

Q: My Mother wants to change her “Will” to reflect the current state of affairs within our family while she is still of sound mind. My sister, the only other family member and the current Trustee, continues to hide behind an Irrevocable Trust written for our Mother signed in 2012. There is language in the Trust which allows Mom to remove and replace Trustees. However, my sister insists she will fight ANY attempt to change her legal status by using money from the Trust to thwart our Mother’s actions and intentions. Is this possible?

A:  If your mother signed an “irrevocable trust”, she may not be able to revoke it. It all depends on the language of the trust. It sounds unusual that it is an “irrevocable trust” yet she retains the power to remove and replace trustees. I assume the trust holds most of her wealth? If so, you need an experience estate or trust lawyer to read the Trust Instrument and see what if any powers your mother has retained to revoke or change. If there is property your mother will pass on upon her death that is not included in the trust, she can dispose of that property by a will, so long as she is of sound mind to do so.

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.

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.