Tag Archives: ELDER LAW

Will social security deposit a SS check into guardianship account?

Q: My aunt has Alzheimer’s and has been found mentally unfit. I have been appointed plenary guardian by the court. She is in a nursing home. Her son-in-law had authority to sign checks on her account, but no power of attorney or other authority. He sought to have the Public Administrator appointed as her guardian. I intervened, as she is my aunt and I am willing to act on her behalf, and I was appointed plenary guardian of her person and estate. I have Letters of Appointment. I call to Social Security to ask that her monthly check be moved into a new checking account. I was met with much resistance, and I was told that my paperwork was meaningless. How to proceed? (Bulger, PA)

A: Social Security does not have to deposit the check into your guardian account. The Social Security Administration has its own system which consists of appointed representative payees who receive payments for recipients. It has its own separate application process to become a representative payee. Unfortunately, you must apply. The fact that you are a relative and were appointed by the court as a Guardian will not hurt.

Can I have my elderly parent involuntarily committed?

Q: One of my elderly parents has randomly run away in the middle of the night and may or may not still be in this state. This parent has shown to have signs of paranoid Schizophrenia and has even driven their vehicle recklessly knowing full well that it has not been properly maintained. I feel by having this parent involuntarily committed they can receive the care they deserve, and also apply for Social Security Disability if they are found to have a disability in the process of being examined. My other parent has told me I have no right to have that other person involuntarily committed even though I am that person’s son, and I’m also above 21+. What rights do I have as their son? What can I do to have my elderly parent involuntarily committed so they can receive the help they are trying to avoid. In the end they may stay or go in our relationship, but the end game goal is to help them the best I can instead of letting them put others at risk. (Pittsburgh, PA)

A: You can file for a 302 under the Mental Health Act however, your parent would need to be located first. The process is not difficult, but whether a delegate will agree that your parent is a danger to themselves or others and commit them, is another question. I sense that you are younger, and your other parent may have a reason for not wanting to commit this person. I think you should consult with an elder law attorney who handles mental health commitments and guardianships for an opinion. There are more facts needed to be known and it may be worth the consultation before you pull the trigger on this.

ELDER LAW, MENTAL HEALTH ACT, INVOLUNTARY COMMITMENT, SECTION 302

Can I, as an heir of my mother’s will, get full financial disclosure from my sister who was POA?

Q: Mother had dementia and agreed to my sister being POA. I believe money is missing and was misused during the required Medicaid spend down. I went to original consultation with elder care attorney, but my sister fired him, without my knowledge. The new attorney did Medicaid paperwork but neither attorney nor my sister will share details with me. Based on my knowledge of assets at beginning of illness, mom had about $210k of assets, Medicaid summary shows $168.5k of spending (with $55k spent on groceries in 2 years! and other questionable expenses). Neither the original assets or spending includes 30 months of approximately $45k in social security or stock dividends. Do I have a legal right to bank statements and other financial information to do my own audit? If so, how can I get this info? (Pittsburgh, PA)

A: A party of interest, which you would be as an heir, can petition the court for an accounting of all monies spent by an Agent while serving under a POA. The accounting can be for the period while the Principal is alive or after the death of the Principal. If your suspicions have merit, you can petition the court to ask her to produce a full accounting. It will go better if you have an attorney handle this for you.

Can POA withdraw money from his accounts?

Q: My 92-year-old roommate’s son has become gravely ill. A week or two after the onset of his illness the daughter had him signing all kinds of forms. She froze his bank accounts and I believe she has moved all of money to a bank in her city. (Oil City, PA)

A: I am thinking that you are asking if your 92-year-old roommate’s daughter can move or transfer the son’s money. She can do so if he was competent when he signed “…all kinds of forms…” and one of those forms was a legal general durable power of attorney which authorizes her to do such acts. If you feel this is not the case and he may be the victim of elder abuse, call the local Department of Aging and ask them to visit and talk to him.

Do I need power of attorney or just temporary documents?

Q: My 48-year-old daughter is in hospital on a ventilator. She has been diagnosed with Castleman’s Disease. She has other other issues as well. She is not married at this time. Her children can’t handle her business affairs. I’ve been asked to handle her bills, and business matters. I am in the dark as to what I need in writing if anything at this point or can I just make decisions? (Pittsburgh, PA)

A: I am so sorry. If she is mentally competent, even if she cannot speak, she can execute a financial Power of Attorney which will allow an appointed person to manage her financial affairs. She can also execute a medical power of attorney. If she is not competent, you may need to establish a guardianship over her. I would consult with an attorney who can more fully advise after gathering all the facts.

Can my mother’s spouse deny a live-in caregiver for her?

Q: My mother, who is very ill would like to hire a family member as a live-in caregiver. Her husband does not want them there. Does he have the right to deny her a live-in caregiver? (Carrick, PA)

A: These are complicated situations. If your mother’s husband is a sole owner or owns the house with your mother, he can bar you or a caregiver from entry. If you feel your mother is being neglected or abused, you can call the Department of Aging of Allegheny County and see if they will investigate. If her husband becomes more obstinate, you may want to consider filing in court to be her guardian. I recommend a consultation with an elder law attorney.

WE WANT GIFT PARENTS MONEY TO 7 GRANDCHILDREN BEFORE MEDICAID GETS IT

Q: HOW DOES THIS WORK. I HAVE A PARENT WHO IS IN A FACILITY. WE WANT TO APPY FOR MEDICAID. WE WANT TO GIFT MONEY TO 7 GRANDCHILDREN. WE WANT TO APPLY FOR MEDICAID BUT IN ORDER TO DO SO WE HAVE TO SPEND HIS MONEY DOWN TO BELOW A CERTAIN NUMBER. THE PARENT WANTS TO GIFT SOME TO HIS GRANDCHILDREN. HOW DOES THAT LOOK TO WHEN MEDICAID IS LOOKING BACK 5 YEARS INTO HIS ACCOUNTS? WHEN ALL BILLS ARE PAID DOWN AND FUNERAL IS PRE-ARRANGED. IS THAT POSSIBLE? (NEW KENSINGTON, PA)

A: the short answer is do not do this yourself. It sounds like it would be a flagrant violation of medicaid regulations and could cause your parent to be ineligible for medicaid and spend their remaining days in a run-down, flea-ridden, warehouse for the elderly. there are certain ways to spend-down with the procurement of medicaid exempt necessities and perhaps to even shelter some of this money. however, only do this through an attorney versed in medicaid regulations

Can a stroke patient appoint a new power of attorney after being declared incompetent?

Q: A month ago, my mother, an incredibly healthy, independent 76 yr. old had a stroke and a heart attack. She lived but missed the critical window to dissolve a blood clot. Since the stroke, she has been on a host of medications which she and I both believe are causing her to be very sick, confused, unable to communicate clearly, and above all, decline rapidly. I’m with my mom every day. She confides in me and I know what she wants. Recently, while in Kaiser ER, she appointed me to make all decisions for her care should she become incapacitated. I signed the paper there and at her nursing facility when she first got there. The very next day, I was shocked to bump into her old friend at this nursing facility, who said she had just signed the same papers there and is now her new POA! My mom does NOT want this! A former trustee in my mom’s original will, she was removed last year when my mom modified the will. She immediately began to insist I hand over my mom’s checkbooks, alarm code, house keys, credit cards, & has since locked me out of the house! We don’t agree on ANYTHING about Mom’s plan of care. My mom wants to come home, but she won’t let her! Please help? (Scott Twp., PA)

A: This is a terrible situation, and you need legal counsel. If you were appointed Guardian, the guardianship would trump the POA. As a child, you would have standing to be her Guardian, than an “old friend”, unless you are not fit by state law to be Guardian. You will need to consult with an attorney. If your attorney can examine the POA this old friend has, he can determine if it is compliant with PA state law as well as advise you on filing to be her guardian. Regarding being locked out of the home, were you living there? If so, the old friend must follow the PA Landlord Tenant Act and give you appropriate notice. That will at least give you a month or two in the home.

How can I change an address on a durable POA?

Q: In 1988, while living in Pittsburgh, my wife and I had durable powers of attorney created. Nothing has changed except we now live in Florida. How can I update the addresses? (Swissvale, PA)

A: Powers of Attorneys are state specific. Many states require a POA to strictly comply with state law. If it does not, the POA can be rejected by anyone to whom it is presented, such as a banks or medical provider. I would have new estate planning documents drafted by a FLA attorney.

Can I be sued for Filial responsibility if my mother in law lives in PA and I live in FLA?

Q: My mother in law lives in PA. She is controlling, verbally abusive and poorly manages money. My fiancé wants nothing to do with her. Could my mother in law sue us for Filial responsibility? Nothing has happened yet, and she is not in nursing care. (Clearwater, FLA)

A: It is not your mother in law who would have a claim against you. Filial law was designed as a cause of action for a medical service provider against certain family members for unpaid service provided to an indigent person. If this were to happen in your scenario, it would likely be a suit brought by a nursing home, rehab or hospital if your mother’s care needs were not covered by insurance or her social security income or whatever other income or assets she has. If this potentially would happen, the fact that you are a resident of FLA would make a lawsuit more challenging for a PA based medical service provider.