Tag Archives: Estate Planning

84 year old friend needs a power of attorney

Q: 84-year old friend was harmed by fall and needs 24-7 caregivers. She has long term insurance policy. She needs a power of attorney for healthcare and finances. For me to fill out an insurance policy claim form on her behalf, she must give me power of attorney for health care and for finances. Her competence is questionable.

A: She needs to be competent to execute a Power of Attorney. The standard for a Principal’s competency required for a POA is higher than the competency level needed for a will. You need to confirm whether she is competent. You can do this by asking her doctor, if he will tell you, or take her to a lawyer who can assess her competency. My advice is to have her hire the lawyer and have him or her represent your friend, and not you.

If my father is in a nursing home and dies what will become of his financial assets?

Q: My father is sick and is no longer able to take care of himself. He moved in with his sister in Ohio. He has saved money to leave for his children but did not make a will and not understanding are willing to make one. What can we do as a family to secure his money? (Moon, Twp.)

A: With no will, his assets will pass to his spouse or spouse and/or children, depending on Ohio intestate law. If your father enters a nursing home and it turns out that he does not have sufficient funds to pay for his care, he, or his next of kin or guardian, on his behalf, may have to apply for Medicaid. If that should happen, all transfers (sales, gifts, etc.) from him to others within 5 years prior to his Medicaid application, done without consideration, may make him ineligible for Medicaid. Before you have him enter a facility, I advise you to speak with an experienced elder law or estate attorney.


Friend abandoned in a nursing home?

Q: I have a friend who has been abandoned in a nursing home. What steps can I take to make medical decisions on her behalf? My friend suffered a heart attack and was to never wake up. She was put in a home. She has since waken up and can speak she knows peoples places emotions. Her son is in jail and her daughter is on drugs really bad no one has seen her since Christmas last year. But she has been collecting checks on her mother’s behalf. The staff can’t even let us comb her hair and they can’t get her into speech and physical therapy without her daughters consent. She is making so much progress and she could even make more with the right care. The staff says she is not ready to speak on her own care yet. I don’t want money or anything like that I want to be able to make medical decisions for her. Any help would be greatly appreciated. She is a part of my family.
A: If she is not competent to sign a Power of Attorney to you, you probably should consult with an attorney about filing a guardianship for her. The guardianship fees, expenses and attorneys fees can come out of her income and assets, and you should not have to pay.

Applying to Medicaid. Do we need to mention gifts from 2-3 years ago?

Q: Our mother is going into a nursing home and application asks for any transfers. Do we need to declare gifts from 2-3 yrs ago? She has resources for approximately one month in a Nursing home and afterwards I believe Medicaid would take over.

A: Yes, when applying for Medicaid eligibility, you need to list all transfers of any property for no consideration (gifts or under market value) in which mom had an interest for the past 5 years. Any transfers without consideration, or which the consideration (money received for sale) for her property which has not been documented, could possibly exclude her from Medicaid eligibility. You really should consult with an estate lawyer or elder law lawyer versed in Medicaid law before filling out any benefits application.

Who gets what in Mom’s will?

Q: My Mom and her husband of 33 years built a home during their time together. Later, he died and left everything to her. Her will stated that all of her Jewelry, clothes, antique furniture went to me. I was told that since she remarried 7 years ago that the old will is no longer any good. I was also told that the house now goes half to her new husband and half goes to me. He says that he thought it all went to him. Can you please help me?

A: Mom’s will determines who inherits from her. If she has no will when she dies, state law , the intestate succession statue, determines who inherits from her. Most likely, this will be the first $30,000.00 to the spouse and the balance of her estate to be split between her spouse and her children. If mom’s will leaves everything to you and excludes her new husband there is a statute, the election against will statute, that allows a spouse who has been excluded from the other spouses will, to claim an interest in one-third of the estate of the deceased spouse. I am not sure if your mother has passed or not but it sounds like all of you should consult with an attorney.


Can my brother challenge my Power of Attorney?

Q:  I have POA for my mother, and I am the executor of her will. When she sold her home, (she lives with my husband and I) we split a home. All 3 of us are named on the deed. My brother is wanting the house to be listed as part of her estate. Can he take us to court to make that happen? We intend to buy out moms half when we all move there when I retire in 5 years. For now it is a vacation home.

A: My thought would be that he could challenge any transfer done by you via the POA or by mom when she was under your care. But, he would have to prove that she was incompetent at the time or under undue influence or coercion. This is hard to prove and any attorney he may speak with will advise him so. These types of allegations need to be proven by clear and convincing evidence. I do not have all the facts here and am not entirely sure I understand your situation. I highly recommend that you speak with an attorney with whom you can share all of the information.

Can my lawyer keep my will from me?

Q: Does a lawyer have to provide me with a copy of my will that was drawn up by myself and the lawyer? Do I have a right to a copy of my will? I asked my lawyer for copy of my will so I could review it. He will review with me in office but refuses to give me copy of my will. Can he refuse to give?

A: Sounds weird. My understanding is that your will is your property, as you paid the attorney to draft it. If he or she is holding it for a good reason, for example if you are mentally unstable and prone to make sudden impulsive decisions that you later regret, he or she may have a good reason. However, like I said, it is your property. If nothing like that is going on here, and he or she won’t give it to you after you request, just go do another will with a new lawyer.  The new will revoke the old will.


Father has dementia but is refusing our help


Q: My 82 yr old father (A veteran) needs an aide due to dementia but is challenging help, what are our legal rights? My father is a U.S. Air Force Veteran , widowed 19 years ago. He lives in West Newton now. If he challenges our help, what legal rights does he/do I have beyond having him declared incompetent. My biggest concern is his well being (he is forgetting to eat). I am currently on his accounts but have concerns with costs. What are my options as he is still somewhat aware and wants to remain independent even though we (my 2 siblings) feel that might not be possible. (Jefferson Hills, PA)

A: If he is resisting you I assume you do not have a general durable power of attorney in place. Until he is declared to be incapable of handling his own affairs in a guardianship proceeding, he is free to do as he wishes. This is a difficult situation for both of you to be in. I would not give up on communication. Perhaps he feels threatened and a gentler approach of opening up a dialog with him is advisable. If Westmoreland County has adult services in the area, perhaps they can do a wellness visit or refer him to services to come into the home. The more you talk to him, and others, the more you will learn and the closer you will come to dealing with the problem appropriately. You should consult with an attorney as to what is involved in filing to be his Guardian.

Can an item once a gift from a deceased person be re-gifted to the deceased’s family?

Q: I have an item that was received many years ago as a gift from someone and we want to re-gift it to the deceased’s family, but by-pass the estate. The gift is currently in the hands of a New York resident, but would be gifted to a California resident. Or it could be gifted to a UK resident. (Chalfont, PA)

A: Once the deceased gave it to you, when he or she was alive, it was yours to keep. You can give it to whomever you want, even after he or she died. Unless it was “on lone” of sorts, and ownership was maintained by him and now by his estate. If I understand what you are saying, and this was a gift to you while the person who is now dead was alive, you can give to anyone with the exception of his estate. If that happened then it would be property acquired by the estate and likely be estate income.

Should I report injury settlement to Medicaid?

Q: Should I refrain from filling out my Medicaid recertification form? First let me say that Medicaid does not have any liens on my settlement in any way. I am due to have the recertification form filled out and returned in less than two weeks. However I recently received a personal injury settlement for less than $20,000 but more than $10,000 which I am not sure by may put me over the PA asset or resource threshold. One legal advisor informed me that I could let it lapse and try to find a Medicare Advantage program to replace Medicaid. I never have liked to inform anyone of what’s in my bank account; but then, who does? So should I not fill out the form which means automatic cancellation or fill it out and let them deny my Medicaid because of my suddenly inflated financial resources from the P.I. settlement?

A: There is not enough information to give you a reliable and through answer. Why would anybody want to risk losing Medicaid funding is my first question. If you handle this improperly you could risk violating the law and lose Medicaid benefits.  I would consult with a lawyer versed in Medicaid rules and regulations before doing anything.