Tag Archives: ELDER LAW

Can we commit our alcoholic dad?

Q: My dad is 59 years old and is a chronic alcoholic to the point he is starting to lose his mind. We think he has brain damage from the alcohol. We don’t know what else to do. He’s now homeless never wants to eat and doesn’t want to go to the doctor. Basically, he wants no help he says he wants to die. We know he is very depressed and he is not mentally right anymore. He raised us alone after my mom passed away. I don’t want him to die like this. So how can we have him involuntarily committed? He is a danger to himself. (Pittsburgh, PA)

A: If his behavior meets the standard under Section 302 of the PA Mental Health Act regarding being a danger to himself or others, you can probably commit him. There is a plethora of free public information on the subject. You can try calling an organization called “Resolve” for help. You can also call a hospital, the police, or even legal services for a referral. Generally, they need someone to be the petitioner, which can be you if you are willing. Based on what you are saying, he may not meet the standard under 302, but it may be worth a try. You should also call Greenbriar, Gateway and Pyramid. They are drug and alcohol programs with in-patient and out-patient programs and may offer advice. If he can be persuaded perhaps a 28-day detox and in-patient follow-up can save him. Good luck.

My father is in assisted living with Alzheimer’s What do I do with his car?

Q: The car has been parked in front of his condo (which we will eventually sell) for months. We would like to drive the car and keep it at our house. Do I need to transfer title, or can I just put the car on my own car insurance? I am his financial power of attorney, and do not want to do anything unethical. (Hermine, PA)

A: There is a larger picture here that any lawyer would need to know before giving you a definitive answer on what seems like such a minor thing. We would need to know if your father is incompetent. If so, the transfer would need to be through the POA. Very generally, if your father has any foreseeable need to apply for Medicaid in the next five years, a transfer of this vehicle out of his name could subject him to a Medicaid penalty to the extent of the value of the transfer. If Medicaid is not an issue more information would be needed on who the potential heirs of his estate are. If these heirs would ultimately object to transferring the car into your name via the POA (if the POA authorizes such transfers or gifts), as a gift, then it may be an issue. Even using the car which will ultimately be estate property, could be objected to. If you are confident you have no potential Medicaid issues, and you are the only heir, there is less risk here, but I would still consult with a VA attorney.

Can my mother and I sell her home and dissolve the life estate?

Q: My mother is 89 years old and developed mild dementia and heart disease. The doctor does not want her to live by herself, so she has moved in with me. We set the life estate up about 5 years ago after a lawyer assured us it was the right thing to do. I am the only surviving child and do not plan to put mom in a nursing home and will use hospice if needed in the future. I do not want to rent the property because it is about 100 miles from me and would be more trouble than it is worth. Can I sell the property since I am providing my mother with a place to live and am also her caregiver? (Baldwin Borough, PA)

A: I would need to know is the life estate in the deed or a trust and look at the documents. If in a deed, does the life estate terminate upon conditions of her death or her being unable to live in the home independently? If in a trust, the trust will have similar conditions which constitute the ending of the life estate. Who does ownership pass to when the life estate conditions have been fulfilled? If one of the conditions of the life estate terminating is her being unable to live in the home independently, then that condition has been fulfilled and you should be okay. However, you should review the paperwork with attorney for a more definitive answer.

What can we do about hoarder neighbors who cause roaches?

Q: For the last couple of years we have had a neighbor trash hoarder. The trash never leaves the porch. (This time it’s been since October since being moved) They have a dog in the house that never comes out to potty, so it goes in the house. They have rotting food on the porch. The roaches at night you can see in the thousands. My husband has made it a ritual to spray every couple of days. Sometimes you can kill up to a hundred coming in at my front door. The roaches carry diseases and I have an 8-year-old daughter. I’m at my wits end with this situation. (Pittsburgh, PA)

A: This sounds like a public health issue that is the responsibility of your municipality to remedy. If it is as bad as you say it is, your first call should be to the local zoning code officer. Ask him to come out and assess the situation. I am not sure of the exact procedures with your local ordinances but normally, the code officer will assess the situation and talk to the home owner. The zoning officer normally issues a citation which cites what codes are being violated and gives the property owner so many days to clean up before the hearing. You can also go to your municipal council meeting and complain if nothing is being done. You can also involve the police who will likely refer you to the code officer but may also make a referral to a mental health agency, so a home visit can be done for this person. You must be proactive.

Can I sue an organization who claims to be my husband’s guardian?

Q: This organization along with the Department of Aging said they were guardians and had a POA over my husband. They said he was financially abused which was untrue. No paperwork, nothing in courthouse. So, what do I do since they probably fudged the taking of him and placing him in a nursing home? He wants to come home and says that those people do not even come to visit him. The one organization which is led by these women who become guardians for a living. They take his money each month from social security. What should I do? (Export, PA)

A: This didn’t happen overnight. It seems you are just becoming aware of this which is odd. You should have been contacted originally when he was taken in to care and served with the guardianship petition and notified of the hearing. Normally, no one can fudge court orders, stick a person in a nursing home and take their money. You need to investigate the situation. You can go to the county probate clerk’s office and look at the file. If there is in fact an appointment of a guardian, there should be a petition and order inside the file. If you don’t understand the documents, you might be able to get a probate clerk to help you, but they cannot give you legal advice. At least from the file you can find out who in fact the appointed guardian is and who the attorney appointed by the court to represent your husband is. You can then investigate matters further. If you qualify to be his guardian, you can hire a lawyer to petition the court on your behalf.

What will happen?

Q: My Father is in his late 50s and not in the best health. He inherited my grandmother’s property some years ago. His girlfriend somehow signed her name onto the deed of the house during the transaction. My Father says he was unaware of. I’d hate to see this property go to this girlfriend if something were to happen to him. I asked him about a will and he said that’s not something a son should ask their parents. So, if my dad passes away, does the property and everything on the property go to the girlfriend because she’s on the Deed of the house? (Murrysville, PA)

A: I don’t know. I suggest having an attorney look at the deed. It should be on file in the Westmoreland County Recorder of Deeds. If her name is on the deed as an owner, she has some interest in the property. If she is a tenant-in-common, she will own a divisible one-half interest with your father’s estate when he passes. If she is a joint tenant, with survivor rights, she will own the entire property when he dies. If there is no mortgage or liens, she will own it free and clear. As far as trying to rescind the deed with the argument that she somehow got her signature on the deed without his knowledge, that usually is an uphill battle. However, an attorney examining the deed can determine if it was legally executed, discuss your father’s competency at the time and perhaps shed some light on the situation for you.

How does a wife reverse a court ordered guardianship?

Q: My mom asked the court if she could be a guardian over her husband because he was taking money out of the bank and misplacing it. He was making bad buying decisions etc. He was also very sick at the time and needed to seek medical attention, but we were unable to get him to go to the hospital. He is now staying in the basement of my mom’s house and we all take care of him. She was granted guardian over my dad but then she does not like the fact that she has to ask the court every time she has to make decisions for my dad, such as paying for certain things for him, writing end of the year reports, etc. They have been married for almost 60 years and she feels like she should not have to asked permission for every little thing. How can she get the court ordered guardianship reversed? (Pittsburgh, PA)

A: If a person does not want or cannot serve as a Guardian, a substitute or successor Guardian can be appointed. I assume a lawyer assisted your mother in being appointed Guardian, so my advice would be to contact that lawyer and ask if he can file a Petition for Successor Guardian.

Does ATF need to be present if the loan holder closes an account?

Q: My sister is ATF on my father’s account and my father is thinking of disrupting our inheritances now before he passes away. Does she need to be present for him to do so? (Uniontown, PA)

A: I think calling in the ATF is a bit drastic. I am not sure what “ATF” means to you. I associate it with the Federal Bureau of Alcohol, Tobacco and Firearms. If you mean, POA as in Power of Attorney, I can answer your query. The person who appoints an Agent to act on his behalf under a POA is called the Principal. Generally, the Principal (in your case your father) can do as he pleases even after they have appointed someone as their Agent (your sister) on a POA. If the person is declared disabled or incompetent, then the powers of the POA come into effect.

Can I take her to court for transferring his assets with a POA?

Can I take her to court for transferring his assets with a POA?

Q: My husband updated his Will recently but failed to update his General Durable POA. I don’t know if he did it on purpose or simply forgot. A couple of days before he passed away his daughter took out $100K in stocks that were supposed to go to me after he passed. My question is, can she prove she acted on his best interest? She told me he asked her to take care of his affairs and that is what she was doing. However, as far as I know there were no witnesses when this conversation took place. Can I take her to Court and win on the grounds of the updated Will and how is her taking his money in his best interest? (Donegal, PA)

A:  More information is needed but based on what you say, she could have exceeded the scope of authority granted to her through the POA. Under the recent enactments to the PA Power of Attorney statues, the POA must specifically grant someone authority to make a gift to themselves for her to do what you say she did. You need to speak with a local attorney versed in the most recent POA statute and have him or her look at the POA document. I just spent almost three years litigating a similar alleged abuse of POA powers. I would act now before she liquidates the funds. If the attorney feels you have an issue he will want to get a court order to freeze the funds pending his investigation. Additionally, under the law in most states, she would be barred from testifying to the conversation with him under the PA Dead Man’s Act because she would financially benefit from a statement made by a dead person. You may also have an issue regarding your statutory right to elect against the will, if you have consequently been disinherited by her conversion of his asset.

Q: Can I take her to court for transferring his assets with a POA?

Q: My husband updated his Will recently but failed to update his General Durable POA. I don’t know if he did it on purpose or simply forgot. A couple of days before he passed away his daughter took out $100K in stocks that were supposed to go to me after he passed. My question is, can she prove she acted on his best interest? She told me he asked her to take care of his affairs and that is what she was doing. However, as far as I know there were no witnesses when this conversation took place. Can I take her to Court and win on the grounds of the updated Will and how is her taking his money in his best interest? (Donegal, PA)

A:  More information is needed but based on what you say, she could have exceeded the scope of authority granted to her through the POA. Under the recent enactments to the PA Power of Attorney statues, the POA must specifically grant someone authority to make a gift to themselves for her to do what you say she did. You need to speak with a local attorney versed in the most recent POA statute and have him or her look at the POA document. I just spent almost three years litigating a similar alleged abuse of POA powers. I would act now before she liquidates the funds. If the attorney feels you have an issue he will want to get a court order to freeze the funds pending his investigation. Additionally, under the law in most states, she would be barred from testifying to the conversation with him under the PA Dead Man’s Act because she would financially benefit from a statement made by a dead person.