Tag Archives: ELDER LAW

If parents in nursing home on Medicaid who is responsible for home upkeep?

Q: My parents put their home and property in a life estate with my sister, my deceased sister’s son and myself. They have since been confined to a nursing home and on Medicaid. (life estate set up 10 years prior to Medicaid so the 5- year look-back is not an issue) My main question is who is responsible for the maintenance, upkeep and financial obligations of the property? My sister and I have been keeping it up, but the nephew has refused to do anything. (Baldwin, PA)

A: I would need to review the life estate before advising you adequately. Is the life estate in their will or in a deed? If the life estate is in a deed that was filed 10 years prior to Medicaid eligibility, the only part of the transaction you need to be concerned with would be the value of the life estate. If your parents held a life estate, they had the right to live in the home that you now own, until the conditions which terminate the life estate are fulfilled. Their life estate has value. Maintenance issues would generally fall upon the owners unless the nephew tenant was obligated to do maintenance pursuant to a lease. Again, you need to have the documents reviewed to get a more thorough answer.

Can nursing facility take your parents savings and home?

Q: My mother has Alzheimer’s and we are looking into placing her into an assisted living facility which deals with her specific needs. If me and my siblings self pay with no charge to her insurance, is the facility entitled to their savings account and or home? (Munhall, PA)

A: I believe your question is whether or not Medicaid potentially has an interest in your parent’s bank accounts or home. The assisted living facility does not care who pays the bill, as long as it is paid. If the bill cannot be paid due to the exhaustion of funds, the facility will advise the next of kin to apply for Medicaid. Once the Medicaid application begins, Medicaid will require the next of kin to report all of mother’s assets. In simple terms, since Medicaid is potentially paying for your mother’s nursing care for the remainder of her life, they expect a contribution of the value of her personal assets. Medicaid looks at all transfer of an applicant’s assets within the five years preceding the application done for less than fair compensation. This normally include gifts to family. Any asset so gifted, can penalize her from Medicaid coverage to the extent of the value of the asset transferred. Since you can afford private pay now, you have some time to prepare for the future when mother’s costs may grow significantly, and you therefore should meet with an attorney.

Can my brother force the sale of my mother’s house?

Q: My mother is in a nursing home. Before that I was her caregiver. I am still her power of attorney. I still live in my childhood home and have started a family of my own. My brother just got out of prison and wants the house. He only lived in the house for one year and never paid even one bill. I used my retirement from a previous job to pay off the house and I’ve paid every bill for almost 10 years. My mother has 4 children in total and everyone else has started a family and lives elsewhere. Does my brother have any rights? Can he force my family out of the house? Can he even try to sell without permission from me and the rest of my siblings? (Pittsburgh, PA)

A: What does your mother’s will say? I am assuming your father is not alive. If your mother is competent, she can sign a will which leaves the house to you. If your mother has a will which leaves everything to the children equally, you may not get to keep the house and be forced to buy your siblings out if you want to keep it. The same result could happen if she has no will, under PA intestate succession law. If the sale of the house would be the result, you have a good argument to recoup your investment in it from the proceeds of the sale. I would consult with a lawyer as soon as possible and before your mother’s condition digresses.

How do I get power of attorney for my grandfather who is currently in a different state?

Q: My grandfather is currently in a different state (Ohio) and I’m in PA) at a physical rehabilitation facility and they are pressuring him to sign a contract for long term care. He doesn’t want to do this, but his daughter (my mother) does not want him to live at home with her. I am willing to take on care for him and move him in with me, but I want to make sure I do everything legally. He is mentally present with no dementia but does need constant care and handicapped accessible housing. I can provide both. What steps do I need to take? (Robinson Twp., PA)

A: If you want to be his caretaker and your motives are pure, that is commendable. If your grandfather is competent, he can sign himself out of rehab and move out of state with you, if that is what he wants to do. He is free to make his own decisions and live with whom he wishes. If the situation is more complicated, I advise that you contact an attorney where your grandfather lives and set up a meeting with you and your grandfather. The attorney can assess your grandfather’s competency and his willingness to go with you. If needed and appropriate, a Power of Attorney can be executed which would give you authority to manage your grandfather’s affairs if or when, he is unable to do so. If needed you can discharge him from the rehab with the POA. Once in NC, you should consult with a lawyer there to have state specific documents drafted for going forward.

My POA sister-in-law for my husband stole 40K from him

Q: My husband lives in assisted living facility and my sister in law has not paid any of his bills for the home nor had she paid pharmacy bills, etc. What can I do? She will not answer any phone calls from me nor the assisted living facility. (Pittsburgh, PA)

A: Call the Department of Aging and report Elder Abuse. You may want to see if the police can help. Neither agency may want to be involved as your sister in law is presumably in charge and it may take a court order for them to investigate her use of his funds. Although I would talk to these agencies, it may be necessary to involve a lawyer to file a petition for accounting which will force her to account for her use of his funds. If it turns out she stole money, criminal charges of theft and civil liability may be in her future.

How will the Will execute for a parent who on Medicaid?

Q: The surviving parent dies while residing in a nursing home. She has been covered by Medicaid for past 4 years. The Will reads that the only child is her beneficiary. Knowing that Medicaid is entitled to some portion of the parent’s estate (less than $2,000), is Medicaid entitled to the full amount or only a share of the residual estate? (Pittsburgh, PA)

A: Generally, Medicaid will be entitled to a share of probate assets depending on the amount of their claim. If it is necessary to open an estate, the estate is required to notify the PA Department of Human Services (DHS), who manages the federal Medicaid program, of the death. DHS will reply to the estate with an Estate Recovery Statement of Claim, which will inform the estate how much DHS is seeking as a claim. The estate then needs to address DHS in writing regarding settling the claim or explaining with supporting documentation why the claim cannot be settled (i.e., insufficient assets), whether an estate is opened or not. If the remaining estate of this person is $2,000.00, it is doubtful Medicaid will seek a claim, but you never know. You may be able to shelter the money with a funeral related expense. I suggest you consult with an attorney regarding this matter.

How do I get my boyfriend to leave my dad’s house?

Q: He refuses to leave. He says he’s a permanent resident in this home. He has not paid my dad rent. He is verbally abusive and has got in to it with the neighbors across the street. I feel very hopeless. My dad has had 3 strokes. I told my boyfriend that I can’t take it no more he runs and runs his mouth for hours and just won’t drop it. He calls my dad foul names and makes gestures like he is going to hit my dad. My brother is working in Alaska and says he take care of him when he comes to town in July. Before my brother kills him I just want him out of the house. (West Deer Twp., PA)

A: You can file for an eviction. Ask your local District Justice Office for advice on how to do it. You will need to post a Notice to Vacate in the premises, then file for an eviction. You may also have rights under the Protection from Abuse Statute. This would involve an act of violence or a threat of violence coupled with a prior physical act. You should start by talking to the local police to see how they can help. They may guide you through the PFA process or even file criminal charges if they think that is appropriate. If you want to pursue a Protection from Abuse Act petition yourself, you can go to the Family Division and file one or hire an attorney to file. I would start with the police.

Can my brother and I sell the house where my mom has lifetime rights?

Q: She was diagnosed with dementia and was put in a nursing home. She will never leave this facility. She has some sort of lifetime estate in the deed. (Braddock Hills, PA)

A: It depends on the wording of the life estate. Many life estates are worded, “until death or unable to return home”. I would have the agreement reviewed by an attorney first. Obviously, if the life estate has been fulfilled, and it is clear she cannot return to the home, you can sell the home. Remember, there are inheritance tax consequences of her life estate, in that the life estate itself is subject to inheritance tax.

Can I sell my mother’s car as her POA?

Q: My mother Is in a nursing home and will no longer be able to drive her car. I want to sell her car. Can I do this with just the POA and go to a Notary Public?

A: If it is a legal Power of Attorney, in that it complies with the requirements of state law, and, it authorizes you to sell or transfer her property, you can do it. There are other factors to consider such as Medicaid. If she should need to apply for Medicaid in the next five years, the transfer of any personal or real property without consideration (i.e., gift, under market value) could disqualify her for benefits to the extent of the value of the transfer. If you sell the car, keep records of the transfer and put the money in your mother’s bank account and only use if for her expenses. First and foremost, consult with an attorney, especially if Medicaid may be in the future.

Can I get paid for taking care of my elderly mother?

Q: My sister filed a petition for conservatorship of my mom last October without discussing it with any family members. She lives in Georgia and I live with my mom in PA. My mom has no access to any of her funds and my sister stopped sending money 6 months ago. My mom has moderate dementia and has good days where she is alert and days where she is sleepy and not as clear. She receives 2k a month from her pension and about 3k from rental property. Because of the conservatorship she has access to none of it. I had planned on taking my mom to the hearing back in December because the court docs said she must be present, but my sister told me that she didn’t have to be there, and I trusted that, so we didn’t attend. Now I’m understanding that would have been the time my mom’s needs and wants could have been heard. I’m not working and live with my mom and have taken care of her for 4 years. For the past 6 months my mom and I have asked for some financial help from my sister who has control of the estate and have been denied or told that she needs to talk it over with the attorney. I don’t think I even have an option to get an attorney for my mom because she can’t access funds to pay. (Washington, PA

A: I will assume, your sister was appointed in PA and just happens to live in GA. The larger picture is that your sister is acting as conservator or guardian of your mother and according to you is not supporting her sufficiently. This requires the conservator appointment to be questioned. I suggest you speak with a local elder law attorney or attorney who handles guardianship law to advise on what your options would be. If it is readily provable that your sister is not acting in your mother’s best interest and not fulfilling her fiduciary duty as guardian, you may have legal grounds to for her to be removed as Guardian you appointed. The fact that she lives in GA raises questions as to how she closely she can care for your mother. I view your payment as caretaker as less of a problem. I would keep an itemized daily account of everything you do and keep expense receipts. The attorney can provide more advice on what records you need to establish for your services. If you keep a detailed invoice, you can submit it to the conservator. If she will not pay, that is another matter.