Tag Archives: Estate Planning

Can a POA be a paid caregiver?

Q: If a daughter has a power attorney over her parents and has been told that the parents need a caregiver to live at home by a government official and the parents want the daughter to be the paid caregiver instead of a stranger, can the daughter pay herself from their money?   Can she pay a little less than what the agencies charge for 8-16 hours a day? If that is what the parents requested in writing? She also handles all their finances, groceries transportation everything it takes to live because they can’t do any of I on their own. Mother has Alzheimer’s disease and father had a stroke and is paralyzed on one side. Neither drives a car, cook nor can bath themselves, and they smoke cigarettes. (Blawnox, PA)

A: You should really consult with an elder law attorney who is versed in Medicaid law. He or she can review the paperwork and all the details. Generally, if the POA document allows the agent to be a paid caretaker, then such care is authorized. However, I am unsure of who the “government official” is and what specific directives this government person has given. If they feel you personally are qualified to provide this care, and do not need specialized nursing, I assume it is OK. I would highly recommend that you have your care authorized by a written caretaker contract which specifies the scope of your duties, hours and wages. This should be drafted with the help of an elder law attorney in the event your mother eventually becomes eligible for Medicaid so you can be paid and reimbursed by Medicaid.

If I die without a will…

Q: What happens if I die without a will? I am married and all our assets are in joint accounts?

A: If all of your assets are jointly titled with your wife, upon your death they pass to your wife by operation of law. With no will, if there is anything in your name only, it will go to heirs under the PA intestate statute. This would mean that the first 30 k would pass to your wife and the balance split between your wife and children. If you would rather your wife inherit everything from you that is held in your name at the time of your death, you will need to have a will in place.

 

Should my parents sell their house to me and my siblings?

Q: To prevent disputes after my parents pass away, my parents want to sell the house to my sister. How is the easiest way to do this? I have a sister that is crazy and we do not want her to cause chaos over the house when my parents are gone. I am hoping that a straight out sell will supersede any property rights that said sister may have. My younger sister has agreed to purchase the home and take control of my parents’ living expenses. (Pittsburgh, PA)

A: f it is the desire of your parents to sell the house to your sister, and they are not doing this under any stress or pressure from other family members, then here is what I can say. First, if it is even remotely possible that either parent may need to apply for Medicaid to fund their nursing care within the next five years, then they cannot sell the house under fair market value. If sold under fair market value, your parent could be disqualified from receiving Medicaid benefits. Your parents need to consider that if this house is their most significant asset, or one of the more significant assets that they possess, the proceeds of it can never be used to fund their nursing home care. I strongly suggest that your parents consult with a local lawyer versed in Medicaid regulations. The money you spend on the consultation may be well worth the advice you receive on preserving at least some of your parent’s money. Additionally, be aware that at least in Allegheny County, they may lose any applicable senior citizen’s taxes. Your parents should also be aware that if your sister is ever sued and would have a judgment placed against her, it would act as a lien on the home. Transferring the family home to a child or children for financial or estate planning reasons, should be done with the advice of counsel and must take a multitude of facts into consideration, including but not limited to the parents entire estate value and income, their health and their intentions on equitable

Aunt and Uncle taking my father’s money

Q: I took great care of my parents my entire life. My Mother recently passed. I am being kept away from my 87 year old father. He suffers from dementia. My Aunt & Uncle are controlling Dad for their financial gain. They are taking his money and acquiring assets. They took him to make a new will with their attorney. (Baldwin Twp., PA)

A: If you feel they are exerting undue influence on him, or he is incompetent to manage his own affairs, you could see a local attorney about petitioning the court to become his guardian. As a child, you would qualify, with other siblings if there any, to be a guardian. On the financial management side, your dad can do, or allow others to do, pretty much whatever he wants, irrespective of whether and to whom he has provided powers of attorney. This is true even if the results are adverse to his interests or to the interests of his children. You can attempt to involve the police or elder protective services, but it is generally hard for them to take action where the senior cannot lucidly express an objection. The most common course of action is to seek a guardianship with the probate court. The guardianship supercedes your father’s right to manage his own affairs, including others doing so with his permission or using a POA, and the guardian has the right to sue or pursue charges if money has been stolen. Ideally, you want to request that you be the conservator, but if there is significant friction the court may elect to appoint an independent conservator, usually a probate attorney. In general, courts do not take kindly to elder fraud, but non-appointment is a risk to consider.

Department of Treasury has money owed to the estate

Q:  The former administrator (attorney) of estate asked to resign from a case in 1998 which was permitted. A second attorney was assigned the administrator in 1998 for the deceased, who had no will. There are current funds that are being at the State Treasury for a substantial sum. Can the dead person’s daughter ask probate court to be assigned the administrator?

A: Based on the limited facts given, I am assuming that the estate was closed years ago? If the Department of Revenue will only release the money to the estate, all is not lost. If the estate was closed (which I am not sure it was) it can be opened again through a temporary grant of letters, to another person. If the daughter qualifies to serve as an administrator, she may be able to serve unless she is challenged by another heir for the position and loses the challenge. It is possible that the new proposed administrator will have to petition the court to reopen this estate. You should consult with an attorney so he or she can review the entire situation including the status of the estate to determine if it was administered and closed properly. If this estate was never administered properly, there could be unpaid debt and delinquent taxes owed which may not make it worth the trouble of opening again.

Should we gift mom’s home to ourselves?

Q: Mom lives with us instead of nursing home. She had several strokes and wants to move back to her home which needs major repairs. How do we this sell her home and not lose it all if she would have need more care. She is 89, she has health insurance. We heard if she gifts it to us we could lose it if there were medical bills. How can we safeguard our investment to the home to make it livable? She has a daughter with power of attorney who also would like this to happen.

A: A gift of the home or transfer of any of her assets without fair consideration (like for a dollar) would likely result in the imposition of a penalty if your mother needs to apply for Medicaid at anytime during the five years following the date of the gift. That does not mean she is without options. It may be possible for her to pay for a caretaker, which could be you, but it should be done carefully, under a contract drafted by an experience elder law attorney, who is versed in Medicaid law. You may also want to consider being her live-in caretaker. To provide an answer to this question, an attorney would need much more consideration including details on her financial estate, her medical condition and health and life expectancy. It would be wise to consult with a local elder law attorney, before you do anything.

How to revoke a Power of Attorney

Q: How can I revoke my power of attorney? What if my agent engages in unauthorized acts after the power of attorney has been revoked or terminated?

A: Normally, POAs are not filed with the court. Also, normally, a POA has language that states in can be revoked in writing by the Principal. Therefore, you should be able to revoke this, by drafting a Revocation of POA. Once you do this you should have the Revocation delivered to every institution which may be relying on it, such as banks and hospitals. If your agent has acted contrary to your interest after having knowledge of the Revocation, he or she, could be subject to criminal charges or a civil suit, especially if he or she has stolen or converted money or assets. You may need a lawyer to assist you.

Transfers of Assets Regarding Nursing Homes

Q: I am purchasing land from my mom so that she can have some cash to spend for living expenses. My mom is 78 and in fairly good health but if she needs to go into a nursing home within the five year “look back?” After the transaction can the nursing home take back that property if it was not a gift?

A: GENERALLY, if the transfer is for fair consideration, it should not exclude her from Medicaid eligibility. This means fair market value as documented or appraised. If you do this, you need to document everything henceforth, so if called upon down the road in the Medicaid application process, you have your proof.

If my mother is in a memory care unit is she competent to give a power of attorney?

Q: Mother’s memory has deteriorated to the point where she must reside in an Alzheimer’s care unit. Does she still have the legal capacity to grant a power of attorney or to consent to a formal guardianship? Who determines competency if there is a dispute among siblings?

A: A person must be mentally competent to sign a Power of Attorney or to consent to any document or in any legal proceeding. If she is in an Alzheimer’s unit, one would think her competency is compromised. I think you need to consult with her doctor as to the level of her competency. If she has basic competency, even with an Alzheimer’s diagnosis, she may be able to sing a Power of Attorney.

What should I do to make sure my spouse does not inherit my house?

Q: I have been married only two years. I purchased this townhouse a year ago in my name only. She and I want to make sure she does not inherit it and the mortgage when I die.

A: You need to talk to an estate lawyer. If your spouse is not on the deed, nor on the mortgage, that is a good start. However, she could still inherit from your estate. To avoid this, you can disinherit her from your entire estate in your Last Will and Testament. You can also leave the home specifically to someone else in your will. As a spouse, if she is disinherited from the will, she can file an “election” against the will. If she has no interest in doing so, then it should accomplish what you want. It shouldn’t happen, but when someone inherits from an estate, and there is an unpaid mortgage, I have seen legal counsel for the mortgage company, sue the heir or heirs of the estate when the mortgage was not satisfied. I have had this happen even when the heirs filed a disclaimer against the estate. You should consult with an estate planning attorney and go over all the options. The only way to assure she will not inherit it is by leaving it to someone in your will. If you have no will, she may inherit all or a portion of it under state law. You may just need a will.