Tag Archives: Power of Attorney

How to get mom out of nursing home?

Q: My mom was placed in a nursing home by a nephew who has power of attorney over her. She has been in the nursing home for 7 years and 7 months. I have been a personal care professional for 20 years. I ‘m capable of caring for my mom. (Clairton, PA)

A: If your mother has capacity to decide where she should live, the only authority needed for her to move in with you, is hers. She can move wherever she wishes, and, she can revoke the old POA in writing or with a new POA. If she has no capacity to make decisions and is incompetent, you will need to override the POA by being appointed her guardian in court. You should review all of the facts with local counsel to see if this is advisable, given all of the facts.

Is it illegal to make changes to a bank account of a person with Dementia/Alzheimer’s?

Q: How does victim proceed? For years, a lady had her only living relative listed as ITF (beneficiary) on her bank account. Now the lady has dementia. A distant friend filed for Conservatorship saying the lady isn’t mentally capable of managing her own finances, but withdrew the petition prior to the court date. Months later, the friend took the lady to the bank and removed the relative’s name from the account listing herself as ITF (sole beneficiary). Recently without the lady’s knowledge, the friend withdrew over $20,000 from the lady’s account, getting several cashier’s checks, leaving no monies to pay all of the lady’s monthly expenses. Per bank manager, friend had POA, funds shouldn’t have left bank and believes possible friend knows teller. Even if lady signed POA, she wasn’t mentally capable. Is any of this legal?

A:  If your information is accurate, it sounds like she is being taken advantage of and her money is being stolen. This is possibly a case of financial exploitation. Call the Department of Aging to notify them. They may schedule a home visit to assess the situation. A person who has “standing”, which takes too long to explain, is someone with an interest. A person with an interest, which is certainly a relative, can take action. It is possible this elderly person is being influenced or has signed a POA over to this “distant friend”. The interested person who comes forward can file a petition to freeze the accounts and for an accounting of all POA funds. Unfortunately, this involves hiring a lawyer, but may be the most expedient remedy. The lawyer can also advise if a guardianship is needed and can get it started.

Sister has a POA over parents and won’t give me information

Q: My sister is POA for my elderly parents. She is not sharing any information with me. I am on the wills, etc. What are my rights to receive information. I live her in Pittsburgh and they all live in Erie. Parents put her as POA, because she is the oldest and they thought/hoped we would all get along. This is not the case. My sister and I are estranged. She did not even tell me when my mother fell at the facility in Oct. Do I have any rights to view finances for my parents as I am not sure everything is good with their finances. I have asked repeatedly for information, even in the past when we were speaking, I sent a certified letter to her 3 weeks ago asking for financial information and to see if she sold their car and if she filed for the VA benefits they are entitled to. There has been no response.

A:  Just being an heir or one of the children does not give you rights to receive the information you want. In fact, your sister may have a duty to keep your parents’ information confidential. If you are concerned that she is abusing or financially exploiting your parents you could petition the court to have her file an accounting of all of the funds she is managing as Agent under the POA. You could also have yourself of someone else appointed as guardian. If you retain an attorney, he or she can advise you which one of these measures might work best. Just having the attorney involved, may cause your sister to give you the information you need and to be more cooperative. It could also make matters worse and result in more family drama. Communication is the key. I would keep trying to communicate with your sister and only use a lawyer and legal system as a last resort.

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.

Can I just take my dad out of the home?

Q: My Dad was put in a home by someone who is no relation and she signed papers so I have no rights. Can’t I just take him home with me? I am his only daughter (both at a biological & legal stand point) and he has supposedly been diagnosed with dementia. I have no criminal background, etc. There is no reason I shouldn’t be able to take my Dad home to be in my care.THE PAPERS SHE SIGNED WERE JUST FOR ADMITTING HIM UNDER THE FACULTY’S CARE. I BELIEVE. NO GUARDIANSHIP EXISTS.

A: Much more information is needed to answer this. For example, on what authority did the “someone” act upon in putting him in a “home”? Did he or she have a Power of Attorney from your dad? The only person who can sign him your dad out is your dad or the person who has legal authority over him. If suddenly taking him out of the home would be detrimental to his health, you may be opposed, unless you have the ability to continue the type of care that he needs. The facility may file for a guardianship. You would have to demonstrate that you are responsible and have an appropriate home. A home assessment would have to be done. If you walk into the nursing home demanding to leave with dad, they will likely call the Department of Aging. You may have to file for a guardianship. You should find a local elder law lawyer and have a talk.

Will Medicare, if requested, give us a detailed list of money spent on mother-in-law?

Q: We are trying to get a range of money Medicare is going to try and recoup after her death. This will also help us decide on decisions we need to make regarding her assets that she has. Thank you

A: Generally, Medicare does not initiate recovery of monies paid unless the payee collected the payments under some type of fraud, or if the payee was awarded money from an injury lawsuit while receiving Medicare payments and thus, double dipped. I think perhaps you mean Medicaid. Medicaid does have a recovery program administered through the PA Department of Public Welfare. When a person enters a nursing home with insufficient funds to pay for care or their funds become depleted while in care, they may have to apply for Medicaid funding. Medicaid can have a lien on all personal and real property of the applicant and expect the financial contribution of the market value of those assets in order for the person to be eligible for Medicaid. Medicaid liens most commonly can be enforced against a home when there is no spouse or disabled or minor child living in the home. If a person feels a loved one may need Medicaid funding in the future it is very wise to consult with an attorney regarding careful financial planning so at least a portion of the person’s assets can be sheltered from Medicaid. You have the legal right to get information from Medicare or Medicaid as long as you are authorized to do so. If a Power of Attorney or a standard Release is needed for you to obtain this information, Medicare or Medicaid will let you know which you need.

Should I file a guardianship for my mom?

 

Q: Do I need to file a guardianship if the Power of Attorney is not doing his job? Mother is in a nursing home and brother is her POA. Mother is unable to communicate except for head gestures. Doctors say she is able to leave facility. Brother refuses to take her out. Do we have to file a petition for Guardianship in order for me to be her guardian? Brother keeps throwing in our face that he is the power of attorney.

A: Filing for the guardianship is a more expensive route to go. A guardianship proceeding involves a doctor’s deposition fee, court reporter fees, filing fees, lawyer’s fees. It will involve a hearing before a judge to determine who should be the guardian. Your brother may contest. Your mother must be served with the petition and may be called as a witness. Courts normally favor the person who has the POA but this doesn’t mean you would not be awarded guardianship of her. You have set forth some valid considerations to replace him. You may want to consult with an elder law attorney before you start any disagreement with your brother. The easier thing to do would be to have mom sign a new Power of Attorney over to you, but I am assuming this is not possible. The new POA would have language which revokes the prior.

 

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.

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.

New wife is stealing money from my dad

Q: How can I protect my Dad’s retirement money from his new wife. I have power of attorney. She took $4,000.00 from him before the marriage. Dad is mildly impaired. He forgets to eat and cannot manage money. I took over finances, so she took him from PA to West Virginia and forced him to marry her without my knowledge. What can I do to protect his finances? She is trying to withdraw his retirement money. (McMurray, PA)

A: Unless your father is mentally unable to manage his finances, which would allow a guardian to be appointed, you little at this point. He needs to see an attorney. A trust arrangement could be established for his assets that are not IRAs or Qualfied Plan Accounts. Please note that in a guardianship proceeding, a wife is generally given higher priority to be appointed than you so you would need to prove she is not qualified to serve as guardian of his estate. You will need to get him to an attorney if he is going to be helped-assuming he wants to be helped. You need to understand what a Power of Attorney is. It is simply an authorization from your dad to do things on his behalf. If it is a “durable” power of attorney, that power continues even if he later becomes disabled. The POA does NOT, however, remove his ability to make his own choices. So, if he WANTS to give his money to his new wife, he can. There is nothing you can do about it, unless you are appointed by the court to be his guardian. You describe him as “mildly” impaired. That is not likely to meet the legal standard to show that he needs a guardian. Talk to a lawyer. You can discuss how she is manipulating him and whether there is any wrongdoing there. Also, if he creates an irrevocable trust and makes you trustee, his wife would have to convince you to release the money. His financial estate gets even more complicated by the fact, that if you and he transfer assets out of his name, and he dies leaving her with little or no money, she can challenge by filing an election against will, which if successful, she could claim one-third of certain assets of his. This is a complicated situation and he should really see a lawyer.