Tag Archives: ELDER LAW

90 year old deeded me his two houses.

Q: I take care of a 90-year-old man. He gifted me his 2 houses. His children are suing me in probate to get the houses back. But now they filed a removal petition on me. My question is my name is on the deed can they have me kicked out of the property. (Versailles, PA)

A: Yes, it is possible that you can be removed from the home if a court order states to so. It is possible that the deed could be vacated or rescinded. You would be notified of the hearing and allowed to participate as a party. The children would have to prove in court that their father deeded this home to you when he was mentally incompetent or that you exercised some sort of extreme influence or coercion over him to get him to sign the deeds. You really should consult with an attorney to see if this is defensible. Criminal charges for elder abuse are a possibility. It may not be an easy case for them to prove in court.

Can we get an order for our brother to stop bullying my mother?

Q: Can we get a restraining order against our brother for bullying my mom for money. She is 85 and has given him over $100,000.00 My brother shows up at her house and won’t leave until he gets money. Mom feels intimidated and says he won’t leave. She says she is being punished if we get on her accounts with her to stop this. Any other ideas how to stop him if we can’t get a restraining order?

A: Mom can do this if she wishes, and you can assist her. She would need to file for a Petition From Abuse Act hearing. If she is mentally incompetent, you will need to seek a guardianship of her so you or another family member can file for her. I think the best thing to do, and I know it is not easy, but is to have a family talk with the brother to let him know what damage he is creating and to lay off, or legal remedies will be pursued. A lawyer could guide you through this stressful and complicated family situation which involves criminal, civil and family laws.

 

Can Medicaid take a home in a Revocable Living Trust?

Q: A parent is now receiving Medicaid. When that individual passes on can Medicaid take their home if they put their home in a revocable living trust?

A: If the home is subject to the claim, which could be for several reasons (in the recipient’s name, transferred without fair consideration within 5 years of application for benefits, no surviving spouse or eligible child living in the home), then yes. Generally, a revocable living trust will provide no protection from the claim. I would consult with an attorney regarding the specific facts.

Can my mom sell grandmother’s belongings to pay for her care?

Q: Grandmother has dementia. Been in nursing home for 5 years. Her money is gone due to hospital bills, nursing home and necessities she needs there as well as meds. Can my mom sell her belongings to pay for her continued care and hospital bills?  My uncles have threatened to sue her if she does. As well as demanded an account of where her money went as well as demanding to see the will that the lawyer has.  Can the sue her for selling her things to pay the hospital? And can they threaten to sue her if she doesn’t get the lawyer to turn over a copy if the will. They are claiming my mom has stolen my grandmother’s money. The apparently thought my grandparents were rich when my grandfather died and they were. They “feel” there should have been hundreds of thousands of dollars when he died. When in reality, there was less than $50,000. Nursing home and hospital/ doctor bills ate that. We provide her diapers and hygiene products gloves and snacks. Can they do this to my mom when they have provided little to no help?

A: If you are doing nothing wrong you shouldn’t have any worries. However, you do need to document these expenditures. Additionally, it would benefit you greatly to seek the advice of your attorney or an attorney versed in Medicaid law. You may need to apply for Medicaid benefits and an attorney can guide you on the process and at the same time prepare you on how to deal with these allegations. With all of these expenditures documented and organized all of your efforts will be accounted for. In the event the brothers find a lawyer who will file for an accounting, you will be able to deal with the issue before it goes to court.

If my father is in a nursing home and dies what will become of his financial assets?

Q: My father is sick and is no longer able to take care of himself. He moved in with his sister in Ohio. He has saved money to leave for his children but did not make a will and not understanding are willing to make one. What can we do as a family to secure his money? (Moon, Twp.)

A: With no will, his assets will pass to his spouse or spouse and/or children, depending on Ohio intestate law. If your father enters a nursing home and it turns out that he does not have sufficient funds to pay for his care, he, or his next of kin or guardian, on his behalf, may have to apply for Medicaid. If that should happen, all transfers (sales, gifts, etc.) from him to others within 5 years prior to his Medicaid application, done without consideration, may make him ineligible for Medicaid. Before you have him enter a facility, I advise you to speak with an experienced elder law or estate attorney.

 

Can my sister charge 65K for caring for my father?

Q: Can a person pay themselves for care giving when the person being cared for lives full time in a care giving facility? My sister paid herself $60,000.00 as a caregiver to our father retroactively for 2011 and 2012 while our father lived with her. She had him sign a POA (revoked to herself only) in October 2010. Most of that time, he was self-sufficient and allowed to come and go as he pleased. They left a key for him outside of their house. She works full time. He has Alzheimer’s and caring for him did become harder. He was moved to a home in April 2013. She has paid herself a total of $64,000.00 for 2013, 2014 & 2015. At this point it would be my contention that she is only performing duties of a POA and not providing care giving services. How can she when he is receiving around the clock care in an Alzheimer’s facility? She is not doing very much that I can see. (Scott Township, PA)

A: You should speak with an attorney. If the POA appointed her as caretaker and authorized payment at the going rate, or if she was operating under a legal caretaker contract, then she meets the first hurdle in my opinion. She would need to justify her payment by showing a record of the hours she worked, services performed and costs paid out of her pocket to. If the POA did not authorize her caretaker services and she over billed, you can challenge this in court. It will require the services of a lawyer to examine the POA and advise you about filing for an accounting. The sooner you act, the better, as she may burn through the money and then collecting it from her may be a futile effort. Also, you can call adult services if you think father has been financially exploited. Also, here is a potential Medicaid issue here your father ever needs to qualify, which you should discuss with the attorney.

How can a lawyer file a quiet lawsuit against me over a property I sold that belonged to me?

Q: A family member gifted their home to me. We went through the whole process legally…the house was appraised; contracts were signed and a new grant deed for myself was recorded at the county recording office. Since then I have sold this home (was cash owned) and purchased a new home. The family member is now angry at me for a personal reason and is saying she wants the house back…which means the new house I bought. I received a letter from her attorney stating that she should have been on the title to the new home because I sold her home. The attorney is also saying that I am responsible for elder financial abuse because the home that was sold was hers. This sounds ridiculous! I sold the home when it belonged to me. That is my legal right. Grant deed recorded and papers signed over. She was in no part of the selling process for purchase of the new home. The attorney is threatening to file a quiet title, financial elder abuse and duress lawsuit. How is that possible? After my grandmother gifted the home to me and I received the grant deed she gave up all rights to the home I’m assuming. (Pittsburgh, PA)

A: There is no easy answer for this without you sitting down with an attorney and going over all the facts and reviewing all the documents. This attorney may be alleging things that he cannot prove. I hope the prior deed to you from grandmother was done by an attorney, as the attorney would have made sure the law was complied with and this was a gift/transfer for no consideration and grandmother was of sound mind as evidenced by her notarized and witnessed signature. So, if all those measures that you stated were done, it sounds like you have protection. Again, gather all your documents and sit down with an attorney, preferably the one who handled the original transfer from grandmother to you.

Can we use video to monitor caretakers for our mother?

Q: My mother has dementia and we have hired bonded, trained, insured caregivers to provide support for her daily needs. We suspect that theft and possible abuse may be occurring. As a deterrent, we would like to install a “very plainly visible” home “video-only” surveillance system. What are the legal requirements of doing so with non-family members regularly in the home?

A: My thoughts are that if they are aware they are being recorded by video, it is not a crime. Have a lawyer draft a release as part of their employment contract. It would basically state that they acknowledge and understand that they are subject to video surveillance and they release you from all civil and criminal liability related to such surveillance.

Can my dad prosecute me for mom making gifts to me?

Q: My dad’s accusing me of elder abuse for taking my mom to the bank getting out her money to go to the casino or do whatever she wants. I take her to bank to get the money she wants to go to lunch or casino and she’s helped me with my school loan as she did with my nephew by putting a $2,500.00 fence around his pool. She’s given me $2,400.00 towards my school payments. My dad says he’s putting me in prison if I don’t pay him $5,000.00 can he do this? She told him he’s out of line. (Latrobe, PA)

A: Your father can threaten to file criminal charges, but it doesn’t sound like a criminal case. I would need more information to determine if the police or the DA would file charges. On one hand, if your mother is competent to make these gifts, and she is under no undue influence or coercion to do so by you or anyone else, then her decision to make gifts is hers. On the other hand, if she is not competent or acting without clear capacity, and she is seriously depleting funds that your father and mother may need for their golden years, he has a legitimate concern. There are criminal statutes that protect the elderly or mentally infirm from being taken advantage of. Whether they apply to your situation I cannot say for sure without more information. Just based on what I hear, I am doubtful criminal charges may arise. However, if your father seeks legal advice, and an attorney believes your mother is not competent or being coerced to make these gifts, you could face criminal charges or a civil suit of some type including a restraining order or domestic abuse order.

How can I get paid out of my dad’s trust for caregiver services?

Q:  I am the caregiver and family trust trustee. I am the caregiver of my dad. He keeps wanting to give me money. I want him to hold on to all that he has, in order to help get him through his life so when I get paid it will be after my dad is gone. My question is, if everything ‘pours over’ to the trust and I am the successor trustee, am I in conflict of interest or doing something illegal if I will the trust after my dad is gone to get paid for the care giving?

A: It depends on how the trust is structured. Typically, a trustee does not get to choose trust beneficiaries or pay herself funds for caregiving. Discuss this with an elder law attorney who can review all the documents because no one can answer this competently without much more information.