New Jersey Elder Legal Questions

It does not.  A Medical Power of Attorney authorizes the agent to speak for the person when they cannot communicate.  A Durable Power of Attorney authorizes the agent to access finances and pay bills without affecting the authority of the person who granted it.  Neither authorizes the agent to determine where the person lives.  If you need an elder lawyer to remind the agent of state law and the nursing home of the federal Nursing Home Residents' Bill of Rights, you can find one near you using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org). Your mother can leave against medical advice at any time.... Read More

Medical and Durable Powers of Attorney are effective when signed unless they state otherwise.  They also generally revoke any previous ones, though third parties are entitled to act on the previous powers of attorney if they do not know about the new ones.  This may be a good time to consult an elder lawyer to make sure everything aligns to protect your mother as much as possible.  You can find one near her on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

It appears that you have two questions. First, the trustee/beneficiary of a revocable living trust pays taxes on the earnings of the assets in the trust just as if she held them directly.  When she dies, the trust becomes irrevocable and the trust pays the taxes (at compressed brackets and so higher rates). Second, it appears that you do qualify for Medicare home health care if you need nursing, physical or speech and language therapy.  Please talk with your doctor.  Your state might also have a Medicaid waiver program for which you qualify.  You can discuss this with your local Area Agency on Aging or with an elder lawyer.  To find an elder lawyer near you, see the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Anytime I hear words like "deeded to himself" or "isolated the parent" it leads me to believe that the person inovlved is not doing the right thing.  If a person has a POA for another person, they have a fiduciary duty to that person, and can only do things that are in that person's best interest.  None of this sounds like it is in his mother's best interest.    Feel free to contact my office for a free consultation.  ... Read More

A dementia diagnosis does not mean that your mother lacks legal capacity to revoke the current Durable [Financial] Power of Attorney and grant a new one.  Many people retain this capacity at diagnosis but lose it over the months and years which follow.  Your mother's physician can administer a simple screening test.  It may show that she retains the needed level of legal capacity or it may show that she needs to consult a neurologist to learn more.  If she no longer has the necessary legal capacity (which is the same as the legal capacity to contract), someone may need to seek guardianship in order to handle her money.... Read More

If your father's dementia has proceeded to the point that he needs 24 hour care, he may well lack legal capacity to execute a Durable Power of Attorney.  If that is so, you must hire a Texas Approved Guardianship Attorney to obtain guardianship and then transfer your father and the guardianship to New Jersey. You might want to hire an attorney located near the VA hospital to visit your father.  Perhaps that attorney can determine whether your father still retains the legal capacity to grant a Durable Power of Attorney, which, from your description, seems unlikely. Please also note that even if your father has named you on a HIPAA Medical Information Release form, the VA will only release records under a court order.  It may also be a struggle to get the VA to complete a Physician's Certificate of Medical Examination.  This document is required in Texas guardianship proceedings.  ... Read More

Absolutely not.  The agent under a durable power of attorney is only granted power with regard to the person who signed it and only while that person is alive.  Even if it grants the agent power to act in estate matters, the agent must work through the usual legal channels, not take the law into his own hands.... Read More

A "POA" usually refers to a Durable [Financial] Power of Attorney, not a Medical Power of Attorney. While some Durable Powers of Attorney specifically allow the agent to appoint someone to act in their place (your mother could have appointed your stepfather her agent with the power to appoint someone to act in his place), this is almost never the case with a Medical Power of Attorney. Clarify which document was relied on.  Talk with the facility.   If necessary, apply to become your mother's guardian.          ... Read More

Medicaid is funded partly by the federal government and partly by the states.  Different states have (slightly) different rules.  Contact a New Jersey elder law attorney.  You may want to use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

Many elder law attorneys -- and some notaries -- travel.   If your aunt only needs a notary, google "travelling notaries New Jersey".  If she needs an elder law attorney, use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org )... Read More

You are not entitled to a salary for serving as a POA.  If you are providing a specific service, such as doing accoutning work or legal work, you can charge the fees for that service.  However, the duty of a fiduciary is to not engage in self dealing, and you have to be very careful of doing anything that benefits you.  ... Read More

They don't "take" life insurance money, but if the person in the nursing home owns a life insurance policy, that will prevent the person from becmoing eligibale to receive Medicaid.  Most times it is required that the cash surrender value of the policy be cashed out, and then the money used for the person's care. ... Read More

If you have access to all bank and investments account (joint owner or authorized user) and if you don't own your car jointly, you may not need a Power of Attorney.  I think its always a good idea to have one, because no matter how careful you are, there will be osme asset or something for which the POA is needed.  The car is a good example.  If you both jointly own the car, you cannot sell without her signature.  Usually a Power of Attorney is relatively inexpensive.  If you can bring your wife to a lawyers office, it could probably be odne immediately for about $150.  Good luck. ... Read More

If your sister sold the house and gave the money to herself, she might be in violation of the terms of the power of attorney.  Unless the power of atotrney specifically allows for gifting, the agent operating under the POA cannot gift money to themselves.  You need to look at the POA document and see if it allows gifting.  If your sister sold the house using the POA then the POA is filed along with the deed and can be found online.  ... Read More

I think you could report anything you feel to be a violation, but I'm not sure it rises to the level of an ethics violation.  At the time your grandmother made this arrangement, perhaps she thought it was a good idea, or that it solved a problem of needing care or not being alone.  I understand the situation is not working out the way she wanted, but without knowing the people involved, its hard to say that the lawyer committed an ethical violation.  ... Read More

I have never heard of the restriction.  I would move them in anyway, and deal with the consequences.  Maybe you could claim it was "temporary" that you are just providing care during rehabilitation.  The regulation seems arbitrary, and would be hard to enforce, and its probably worth the problems with the HOA based on your circumstance. ... Read More

You can file a guardianship to declare your mother incapacitated.  Then she cannot divest herself of her assets, and the court will monitor her finances.  If you are in Monmouth or Ocean Counties, call my office and I can help you.  If you are in another county, use the Lawyers.com search functions to find an elder law attorney in the county in which your mother lives. ... Read More