Ohio Elder Legal Questions

The situation is confusing as written.  Is your husband mentally disabled?  If not he makes the decision to see you and your son.  If he is mentally disabled you may want to look into establishing a Guardianship.  There are no simple answers to the questions you posed.  I recommend sitting down with an elder law attorney in your area to discuss the situation in detail. Best of luck.... Read More

Probably nothing.  APS is seemingly conducting an investigation regarding your mother's circumstances.  For actual legal advice you will need to retain an attorney.  The devil is in the details unfortunately.  Keep in mind that APS deals with people who have dementia on a regular basis.  Depending on the investigator you get, they are fairly used to hearing about unfounded hallucinations.  Either way, they may find that her needs are not being met with her current level of care. ... Read More

You probably want to sit down with an attorney.  There are a lot of moving parts here, and it's going to require a more in depth look.  Is there a lease agreement? Has law enforcement been involved?  The background facts may make all the difference here.   Best of luck.... Read More

If there is no written lease, your brother is a guest or a tenant at Will.  Your father can change the locks.  He can also bring an eviction suit in small claims court and hire the sheriff to remove your brother.  If your brother is exploiting your parents, anyone can bring a complaint to Adult Protective Services.... Read More

From your description it appears that the only way to rope in the attorney who drafted the trust would be if you could prove that he was party to a fraud:  perhaps that he knew or should have known that your husband lacked legal capacity to sign the trust document and himself financially benefitted.... Read More

I am so sorry. Please report this to the Center for Medicare and Medicaid Services, the state Attorney General and to private organizations working in this area such as Long Term Care Consumer Coalition, Justice in Aging and the American Bar Association's Commission on Law and Aging.  You may also want to contact Andrews Kurth, a law firm collecting information and considering suits in this area.  It is a mounting problem.... Read More

Report online to Adult Protective Services.  The caseworker may be willing and able to confront her -- or not. Hire an elder lawyer to send her a demand letter.  In Texas abusing, defrauding or exploiting an elder is a first degree felony. Neither of these may work.  Then hire a lawyer to file a Motion for a Temporary Restraining Order.   Whatever you do, get her off your bank account.  If she or your son is your agent under a Durable Power of Attorney, revoke it, grant a new one to someone else and record the revocation and the new Durable Power of Attorney in the county deed records and send them a copy. It can be hard to face the fact that there is a thief in the family.  But it is all too common.    ... Read More

From your description, your mother lacks the legal capacity required to grant a Durable [Financial] Power of Attorney or enter into a contract to buy a car.  If you think that she needs someone to take control of her financial affairs, hire a local probate attorney and apply for guardianship.... Read More

Your mother could bring a suit in small claims (justice of the peace) court, representing herself.  If you would like to learn whether Ohio has special laws regarding exploitation of the elderly, you can contact an Ohio lawyer who is a member of the National Academy of Elder Law Attorneys (www.naela.org).  ... Read More

Talk with a local elder lawyer about your state's Medicaid rules.  You do not want Medicaid to decide that this is free rent, a gift from your mother which disqualifies her for nursing home Medicaid.  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

Who is your father's agent under the Durable [Financial] Power of Attorney?  That person, not the agent, first or second alternate agent under the Medical Power of Attorney, has the authority to sign a nursing home admission. You may well want to consult with a local elder law attorney.  If so, use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org).      ... Read More

While the Medicaid Estate Recovery Program varies from states to state, most (maybe all) states will not seek to enforce the lien while a surviving spouse resides in the home.  Talk to a local elder law attorney.  You can find one using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

This is something you should sit down with a local elder law lawyer and discuss. There are pros and cons. Pros-it reduces inheritance tax, there is no need to have the house part of the estate when the surviving parent dies, you may avoid a Medicaid lien if the survivning parent never needs to apply for Medicaid within 5 years of the transfer.  Cons-inheritance tax usually is not much for children, If the surviving parent needs to apply for medicaid within 5 years, a transfer of the house for no consideration can present problems, the parent loses control of a valuable asset they may need to liquidate for money to afford a better nursing home, the parents sometimes lose senior citizen real estate tax discounts. I practice in PA, ask an OH lawyer. ... Read More

A very good question and one we often address. First, the nursing home does not "take away" anyone's home. If a person requires nursing home care or other long-term care, the person, or his family must pay for the cost of care. Part of the cost may be paid by Medicare after a hospital stay; or from long-term care insurance; or from savings. In any event, once the person no longer has sufficient funds to pay for their care, the person may apply for Medicaid, which is assistance provided by the state and administered by the county Job and Family Services office. An application is made and the county office determines if the person qualifies. Having an interest in real estate does not disqualify the person; however, the property must be listed for sale within 6 months of entry into long-term care. In this case, since the mother is the owner of the home, if she needs to apply for Medicaid assistance, the home is considered her asset. However, it may qualify for an exception to the rules which provides that the home is exempt if it is the residence of a disabled child. You will need to determine if the disabled child can live there independently.   Note: Specific facts may affect the advice given in the case.  ... Read More

Gong into a nursing home is not the triggering event. Applying for Medicaid is. THere is a 5 year look back from the date of eligibility after applying. If the transaction was more than 5 years ago, you are probably ok. However, check with a local elder law attorney. You should really get an opinion from a local Ohio attorney.... Read More

Your mother can change her Power of Attorney for Healthcare anytime that she wants to, as long as she is competent to understand what she is doing. By signing the document, she gave your brother the authority to make health-related decisions on her behalf. Your brother does not need to cooperate in having the document changed. Your mother is free to sign another Power of Attorney naming whoever she wishes as her agent. The new document will replace any previous ones she may have signed. I suggest that your mother give a copy of the new Power of Attorney for Healthcare to her primary physician, as well as any other doctor that she visits regularly. She should take a copy with her to any emergency room visits. Contact an experienced estate planning attorney to draft the new Power of Attorney. An attorney will make sure that the document is properly drafted and signed. In the event that your mother is not capable of signing a new Power of Attorney, the attorney can help you find other options to make sure she is protected. Tonya R. Coles Elder Law -- Estate Planning -- Probate www.tonyacoles.com... Read More