Tag Archives: ELDER LAW

What type of attorney handles fraudulent transfer agreements?

Q: My late father had dementia as all his extensive medical records show. His MD told me on the phone that my father had not been not competent enough to sign any financial documents for the previous 4 years before his death. My father could not write well or speak clearly, and he was mainly in bed. My father’s emails show that an attorney had been contacting him urging him to sign this TOD, yet my father seemed annoyed at these requests. The attorney went to my father’s home and wrote out the entire TOD agreement for my father and had my father scribble ONLY his name to sign the agreement with his financial institution (a stock brokerage/bank) so the agreement was between my father and his brokerage. There was no independent notary observing this interaction as the attorney was also the notary. I am the executor of his estate and his only child/only legal heir and do not believe this is fair treatment of someone who had dementia and should not have been signing financial documents. Is a contract law attorney or “will dispute” attorney most efficient at handling this case which is in the federal court as an interpleader case with the other beneficiaries suing too? (Pittsburgh, PA)

A: The matter sounds complicated. If litigation in Federal Court has begun, you need to have an attorney or may forfeit your interest. If you have a medical opinion that states your father was incompetent when he signed the transfer, you have the beginning of a good case. I think you need an experienced estate attorney who also handles litigation in Federal Court. This is an unusual combination. The other more realistic option is to hire an estate lawyer and let him bring in a Federal Court litigation attorney as co-counsel. Good luck with your claim.

ELDER LAW, COMPETENCY, ELDER ABUSE, TRANSFER, LITIGATION

Is a party’s signature needed to remove her from a deed?

Q: My 93-year-old mom was coerced in Feb 2017 by my sister to sign a quit claim deed adding her to her home. Although done in a lawyer’s office, he nor a notary witnesses the signatures. No money or consideration made either. (Bethel Park, PA)

A: If your mother was competent to sign the deed, and the deed is legally correct, the transfer is valid. If the deed is valid and your sister is on the deed as a grantee, she must sign any new deed. The exception to this is if you can get her off the deed by court order as a result of successfully challenging the deed which is difficult to do. In PA deeds must be witnessed and notarized to be accepted for recording.

Can my mom sell the house if dad’s name is still on it, but they divorced?

Q: My parents bought the house in 1977 and divorced about 10 years ago. Mom’s name was never removed from deed and dad passed away 4 months ago with no will. I am the only child and am ok with my mom selling the house. The deed doesn’t state anything about survivorship or tenants in common. (Pittsburgh, PA)

A: If there is no written divorce settlement agreement that address how the house is to be distributed, upon the divorce decree, it changes from husband and wife tenants by the entirety’s property, to tenants in common property. As tenants in common, they each own a divisible equal share. This means your father’s share passed into his estate and will be inherited by the heirs he named in his will or if he had no will by his intestate heirs. If he did not remarry, then his intestate share of the house would pass to his child or children in equal shares. Your mother can only sell her 50% share. If you and your siblings if you have any, wish to sell you can sell if you wish. If you do inherit one half, you need to pay inheritance tax and should speak with a lawyer. I would check your mother’s records and if not check their divorce file with the Allegheny County Department of Court Records.

Can a person acting as POA remove a beneficiary from policies?

Q: My sister will NOT talk to me and behind my back put my mom in a nursing home. My sister went got POA health and financial from my mom. Now she wants me to pay half of all debts. My mom told me she put me and my sister as beneficiaries on her life insurance policies. Now that my sister is POA can she remove me as beneficiaries from those polices and not tell me? (Jefferson Hills, PA)

A: Under the new enactments to the Power of Attorney statute, effective January 1, 2015, an Agent can only change beneficiaries on a life insurance policy if specifically granted that power in the “Powers” section of the Power of Attorney document. Under the prior Power of Attorney Act, effective in the year 2000, an Agent may be able to do this if there is similar language giving such authority. Your question depends on when the document was signed and how it was drafted. You should get a copy and consult with a lawyer.

Can we pay ourselves for caring for our 90-year mother?

Q: Mom still lives at home. We have someone come in throughout the day but my three siblings and myself stay with her overnight and do 24 hour shifts on weekends. We’ve been caring for her for 3 years and have never paid ourselves because we didn’t know if we can do that. Also, if we are allowed, can we pay ourselves back? In the event she needs to go into a home and runs out of money and goes on Medicaid, will they come back on us to recoup the money that we paid to ourselves for her care? (Pittsburgh, PA)

A: Yes, as it stands now, if you have no written caretaker contract in place and you pay yourself as you go along, or try to pay yourself retroactively, this could potentially make your mother ineligible for Medicaid if she applies within the next five years. Medicaid would look at these payments as transfers for no consideration or fair value unless they are made pursuant to a written caretaker agreement signed by your mother if she is competent or by her Agent under a valid Power of Attorney.

With a power of attorney, can I evict my brother from mom’s home?

Q: My brother moved in with our mother to help take care of her 17mths ago. He didn’t have to pay any bills, grocery’s or maintenance in this time-period. She’s now in a nursing home. He said he can no longer care for her. Now he refuses to pay rent or help with the bills for the nursing home. He is living in our mother’s home and driving her car. He verbally said he would pay $500 monthly. I supplied him with deposit slips for this money to go directly into our mothers account to help pay for the nursing home. Can I evict him being I have power of attorney over our mothers estate? (Penn Hills, PA)

A: If your mother is mentally competent and wants your brother to stay in her home and drive her car, that is her decision, not yours. If she is incompetent, you can act in her best interest, if your POA complies with state law and permits you to manage her real estate. If so, you may have to evict him through court since he has been living there so long. You would start this process at a District Justice office. If your mother is receiving funding such as Medicaid, rental payments to her may disqualify her. I would review all the details with an attorney.

Can an elderly relative change their will if demented?

Q: My Aunt’s property was left to a nephew and his wife and family. Other family members have been talking to the aunt who has dementia and now she has changed the will. Is this legal? (Pittsburgh, PA)

A: Your aunt can only change her will by executing another one, a new will, which is in compliance with the law. Plus, she can only execute a new will if she is competent. Dementia does not necessarily mean she is incompetent. There are varying degrees of dementia. If she executed a new will and you are suspicious of the circumstances, you should review all the facts with an attorney.

Do I need a new deed now that my wife died?

Q: I recently lost my wife to brain cancer and our house is in both names. Do I have to do anything to remove her name or wait until I sell the house? She had no will or anything and wondered does everything just get put into my name as far as any belongings in the house? Wife’s family brainwashed our son who filed a false police report in hopes to have me arrested but because that did not work and DCP was called in, in-laws and son took me and wife to court while she was on hospice. I can’t trust them with anything at this time. They did not even visit my wife when they live a mile away and cared less about her after she was diagnosed with cancer 5 years ago. I now live alone in house but always think something can happen when I am not home. (Pittsburgh, PA)

A: In PA, deeds titled in the names of husband and wife are held as tenants by the entireties. This means that both spouses hold an undivided interest in the whole, as one. Unlike with joint tenants, where on tenant dies, and the survivor tenant inherits their half, the surviving entireties tenant still owns the whole as he did before, now only in his name. It is confusing but if your deed lists you as tenants by the entireties, or as husband and wife, you probably are now the sole owner. And generally, there is no reason to execute and file a new deed. A deceased’s spouse name can remain on the deed until the house is sold by the surviving spouse. As far as any other property held in your wife’s name only that was not real estate held by the entireties with you, there could be concerns. If she died with no will that left everything to you, then property held in her name only, passes in accordance with PA intestate (no will) law. This means that the first 30k of her estate passes to you, the surviving spouse, and the balance is shared 50/50 between you and children of you and your deceased spouse. As for your son and in-laws, you may want to consider getting a security system or a Pit Bull or Rottweiler, as a roommate.

How can I pass an interest in my house to my children if my wife is on deed with me?

Q: I recently refinanced my home and deeded it as tenants in the entirety with my second wife. I have two adult children. I would like to have my children have interest in the property if I die before my wife. What is the best way to do this as she has no immediate family and I do not want the property to go to the state upon her death. (Valencia, PA)

A: Consult with a lawyer with whom you can share all the facts. If the house is now titled by the entireties, as husband and wife, the entireties tenancy can only be severed if the wife agrees to sign another deed, one of you dies or by court order. As tenancy by the entireties, your wife will inherit it from you when you die, and it will not pass to your estate. Therefore, you cannot pass it to your children in your will. The only way to pass an interest to your children is to draft another deed. I cannot advise which type of deed will be best for your situation, but the options would be to execute a new deed with or without your wife on it. Your children could have a tenant-in-common interest with you or you and your wife, or joint interest with you and your wife. You could also do a deed to your children with a life estate in the property granted to your wife. If she has a life estate, she can live in the property until she vacates the property or dies, then her life estate is extinguished, and your children’s interest becomes free and clear. You really need to consult with a lawyer who can advise after understanding all the facts. Additionally, you should seek approval from your mortgagee whenever you change the deed if there is a mortgage or HELOC in place.

How can I get power over my mom’s finances if she is incapacitated?

Q: My mom has fallen ill. They put her in a coma. How can I take charge of her bills to keep her house going? There is no living will or power of attorney. She receives social security and pension checks. (Ligonier, PA)

A: If she is not competent to sign a POA, your only recourse is filing to be her guardianship. You should review all the details with an attorney.