Tag Archives: ELDER LAW

Would my brother or me be liable for my Aunt’s well-being?

Q: I am looking to move in with my brother and my Aunt. My brother and my aunt live in my grandfather’s old house. My father and my aunt purchased it from the estate, and each owns half of the house. My Aunt does not take care of herself or the house. She will let trash accumulate. She has problems walking and refuses to see a doctor. Anytime we try to intervene or get her to change she said we are intruding on her personal rights and if she wants to live like a slob she has the right to. If she were to require serious medical attention through the emergency room or if she were to pass away, I am concerned my brother, or I could be held legally responsible for her? We are in our 30s. She is in her mid-60s. (Elizabeth, PA)

A: You have no duty to care for her if you are not living with her. However, if you move in to her home, you become a household member and could be liable for neglect or abuse if you do not seek help for her if she needs of medical treatment or is injured.

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.

Can they remove my son’s name from grandmother’s deed?

Q: My grandmother made a deed to her property 3 years ago. She has lifetime stay. At her death her adult son has lifetime stay. At his death it goes to my 15-year-old son. My grandmother now has dementia in a nursing home. My uncle says he’s going to the court system to take my son’s name off so my uncle can be sole owner of property. He says he needs to do this to keep Medicaid from taking her assets for payment of her care in nursing home. Can he go to a judge and have this deed redone in his name only, taking my minor sons name off the deed with my signature as guardian?

A: I think is possible, assuming your uncle is acting in your grandmother’s best interest in dealing with Medicaid matters and not to benefit himself. However, much more information is needed. Assuming Medicaid is in the picture here, this transfer was done within the 5-year Medicaid look-back period. That could potentially penalize your grandmother to the extent of the fair market value of the house which was transferred. Additionally, there are two consecutive life-estates, from what you describe, one to grandmother then one to herself. In many states, a life estate has a monetary value. Of course, the uncle would need to possess some authority over your grandmother to do anything on her behalf, such as a Power of Attorney or her Guardian.

Can I sue here in PA?

Q: My dad died from seafood poison in New Orleans, while on holiday. Can I sue here in Pittsburgh? I expect to be appointed administrator of dad’s estate – he died without a will. So, I wonder if I can sue here in state court, or federal court and if I win when suing on behalf of dad, what is his wife entitled to? (New Eagle, PA)

A: Sorry for your loss. As far as jurisdiction in which to sue, I think you must likely sue in Louisiana in state court. Federal Court may have jurisdiction if this restaurant has business contacts in PA, for example, if it is a chain establishment with eateries in this state. In that case you could sue in PA Federal Court. I would consult with an experienced personal injury attorney to assess whether you have a case and where to sue. If there is no will his wife is entitled to inherit under PA intestate (no will) law. She therefore would be entitled under his will to the first 30K and then would share one-half of the balance of his estate with his child or children. She may recover additional money under a survivor’s action, but you would need to confirm this with the PI attorney.

Will a wife still use a durable POA if I’m in my right mind?

Q: I went to a hospital to have surgery and everything thing went wrong. That was three years ago. I gave my wife a durable power of attorney before the surgery. I was in ICU for several month. In January of 2018 my wife and I separated, and she stuck me in a nursing home. I became paralyzed at the hospital three years ago. While in the nursing home my brother and I were informed that when my mom died there was life insurance. My brother received his share. My wife took mine and cashed it saying she had power of attorney. At the time of the surgery things were not clear. The past two years I’ve been making my own decisions. Was she right or did she forge my name? (Jefferson Hills, PA)

A: If someone is competent to act on their own, they still can and the person holding the POA as Agent must defer to them. If the Agent continues to act against the wishes of the Principal, the Principal can revoke the POA. In your situation, if you were incompetent and your wife was acting under a legal POA signed by you which appointed her as Agent, then she can act on your behalf. The question is whether the POA specifically allowed her to exercise control over and keep for her own, insurance proceeds payable to you, assuming that is what she did. The basis of every POA is that the Agent must act in the best interest of the Principal and only act within the limitations of the written Power of Attorney. If this POA was drafted after January 1, 2015 when the new POA statute came into effect, the document must clearly state that she is authorized to liquidate insurance proceeds and make a gift to herself, assuming that is what she did. I suggest you gather documents such as the POA and the insurance records and consult with an attorney regarding whether the POA allowed your wife to do what she did.

Can I get a copy of my mom’s will?

Q: I Don’t know if I am in mom’s will. My sister had her deemed incompetent and put her in an assisted living. We had agreed that to prevent this I would quit my job to care for her. She is the executor and has power of attorney. She made me leave after I moved in. I now have no job, no money, no car. I had lived there 6 months prior to this. I would like a copy of the will. Is this possible? (Oakmont, PA)

A: As far as obtaining a copy of the will, first, ask your sister. Look in the house. Ask your mother. If you get nowhere, see if you can find the attorney who drafted the will. He may have the original, a signed copy, or even a blank copy. As far as whether your sister is serving your mother’s best interests as her Agent on the Power of Attorney, or whether you would best be suited as her guardian, this can only be determined by knowing more of the facts. I suggest you consult with an attorney.

With POA can she kick me and my daughter out of my mother’s house?

Q: My sister supposedly has a Power of Attorney from my mother. I have never seen any papers and my daughter and myself have been in the house for 20 years. We were taking care of her before my sister put her in a nursing home. She is also signing my mother’s name on checks and papers. (Dorseyville, PA)

A: She is only authorized to perform acts on behalf of your mother that are authorized by the Power of Attorney. In order to determine this, demand to see the POA. If she will not share it with you, call Adult Protective Services and tell them your concerns.

How can I speak to medical professionals on my mother’s behalf?

Q: My mother, 57, is receiving medical care through the VA of Michigan. I live in PA. My mother is having a hard time with the VA and isn’t emotionally capable of dealing with them. She suffers from PTSD and multiple other physical and mental ailments. She recently received a hip transplant/surgery through the VA. As previously stated, she lives with a roommate who is incapable of providing my mother with proper medical care. She needs in-home medical rehabilitation, as is normal after a major surgery. The VA has not provided her with in home care but scheduled her physical therapy through another VA facility. She was notified that her physical therapy would be canceled as she wasn’t cleared for it due to lack of post-surgery rehabilitation, which she was not provided with in the first place. This is just one instance of a situation where I feel my mother would benefit from my assistance. While I cannot assist my mother physically as we are states away from each other, it would benefit her if I could at least speak to her medical caregivers on her behalf. Does POA grant this ability, or another legal process? (Bentleyville, PA)

A: If your mother is competent, she can sign a General Durable Power of Attorney to you as well as a Medical Power of Attorney. If she is not competent to sign, or if the circumstances warrant it, you could petition the court to be her Guardian, which is much more involved than a POA. I would consult with an attorney in her area in Michigan.

Do we need a Power of Attorney?

Q: My sister and I are taking care of our elderly mother who is 88 years old. She no longer can take care of herself we are on her bank account. We are on her will to take care of her needs when she passes. We are wondering if we need a power of attorney to take care of any other things that come up. (North Versailles, PA)

A: If your mother trusts you and your sister and your mother is competent it would be beneficial for her to have a General Durable Power of Attorney and a Medical Power of Attorney drafted by an experienced Estate attorney. With the General Durable Power of Attorney document, you can do a multitude of tasks for your mother beyond banking. I would make an appointment to discuss her needs with a lawyer.