Pennsylvania Elder Legal Questions

A dementia diagnosis by itself does not mean that someone lacks legal capacity to grant a Durable [Financial] Power of Attorney.  Some people in the early stages still have this legal capacity.  Fraud is another question. In some states an agent under a Durable Power of Attorney is required to report to the person who signed it and, if it so states, to others. In some states anyone who would be a beneficiary under a Will or an heir if there is no Will can ask a court to investigate the activities of an agent under a Durable Power of Attorney. You may want to discuss your concerns with an elder lawyer.  You can find one near you using the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Medicaid has a five year look back perriod.  Any transfer of $200 or more for less than fair market value duing the 60 months before the application (which can only be made when you are in a nursing home) results in a penalty period during which Medicaid will not pay.  The number of days, weeks, years or months is deterrmined by dividing the value of, in this case, your home by the dollar amount which PA Medicaid determines is the daily cost of care for that year.  That figure tends to be low balled, rersulting in a longer penalty perirod.... Read More

If your mother is receiving Medicaid, she is regarded as having access to 100% of the joint account.  That money should all go to her care.  Any gift (and this could well be seen as a gift) of $200 or more in the five years before she applies for Medicaid could disqualify her for a certain period of time.  You might do well to consult with an elder lawyer.  You can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

If the insurance check is made to you both with "OR," you need not trouble your brother to sign as your mother's agent under a Durable Power of Attorney in order to deposit it.  If the word "AND" is used, you may need to do so. Unless your mother lacks legal capacity, she can sign a deed gifting her interest now (not a good idea as it would disqualify her for Medicaid for a time) or on her death. In some states, any heir can ask the court to look into the apparently suspicious dealings of an agent under a Durable Power of Attorney.  In all states, the suspicious dealings can be reported to Adult Protective Services. If you would like to consult with an elder lawyer, you can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

No.  Facilities often mistakenly believe that the agent under the Medical Power of Attorney has the right to determine who may visit but that person does not.  Even a guardian of the person cannot restrict visitors except if someone has abused or exploited the person.  This is false imprisonment.... Read More

From your description it appears that your sister violated her fiduciary duty under the Durable Power of Attorney and exploited your mother.  You may want to report her to Adult Protective Services and talk with an elder lawyer.  You can locate one near you by using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

Domestic violence is the leading cause of homelessness for women. Is there a women's shelter in your area?  Have you contacted Adult Protective Services? Have you considered a civil suit?  If so, you might want to talk with a local elder law attorney.  You can use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Your father, not you, has the right to oppose the divorce and to sue for loss of consortium.  You may be able to act on his behalf if you are his agent under a Durable Power of Attorney and that document states that you may represent him in litigation. Unfortunately, all too often when people in second marriages have not let their respective children know that they have provided for them separately, someone steps in to "divorce" them or seek guardianship in order to ensure that a parent's funds do not pay for a step parent's care but pass to them.  You or the divorce attorney representing your father might want to use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)    ... Read More

Since the Middle Ages spouses have been responsible for one another's food, shelter and medical care.  Your father may argue that by removing your mother from the marital home you have relieved him of his obligation for the first two.  At her age she is most likely receiving Medicare.  There may be co-pays for which you could argue he is responsible in a small claims or justice of the peace court, representing yourself.... Read More

Each person is responsible for their own expenses.  Please be careful to structure your payments to your mother as rent so that Medicaid does not treat them as gifts if you enter a nursing home and need Medicaid:  transfers for less than fair market value during the 60 months before the month of Medicaid application are treated as an attempt to qualify for Medicaid, resulting in a penalty period during which Medicaid does not pay.  Please also note that if your mother enters a nursing home and needs Medicaid, Pennsylvania can put a lien on her home.  Lastly, these days more people are going into assisted living, which is not paid for by Medicaid or Medicare (though Medicare will provide home health services there on doctor's orders).  Your mother may want to access the equity in her home to pay for this,  To discuss your situation and the possibilities in detail with 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

Only you can grant a power of attorney to somneone.  If you signed a Power of Attorney naming your daughter as your agent, the document probably gave her authority to access your bank accounts on your behalf.  If you did not sign it, she does not have that authority.  If you may have signed it but want to revoke or terminate it your can -- but you must present written notice of this to the bank and everywhere else your daughter might show the Power of Attorney.  You should also inform your daughter.  If you do not feel comfortable with her accessing your accounts, you might want to make a new Power of Attorney appointing someone else.  A local estate planning or elder law attorney can help you.  Use the find a lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

This is a tough situation.  If your mother is suffering from a physical or mental condition that impairs her ability to make rational decisions, you might be able to file a court action to declare her incapacitated and have a guardian appointed.  You'd need to have a doctor support that type of a case.  You should try and have a lot of contact with your mother because you are at a big disadvantage being out of town.  You just don't have the information.  If she's able to think for herself and perhaps making bad decisions, there's nothing you can do about that.  ... Read More

Usually powers of attorney for finances and health are in separate documents.  You should budget $250-$350 to have both completed.  Could be more or less expensive.  These are legally very powerful documents so make sure the practitioner you retain knows what they're doing.  We handle these routinely and we'd be happy to assist you.  ... Read More

This is a really difficult situation.  Is there someone else in your parents' life from whom they might take advice?  A pastor, financial advisor or friend?  maybe ask them to make the suggestion.  The law of intestate success will take over in the event both pass without a will.  For assets NOT titled in both of your parents' names, that means that the survivor of the two of them will be dividing the decedent's estate with the two children.  If you tell them that, maybe that will be enough to spur them into action.  The most important document for them now is a durable general power of attorney.  I would suggest that you start there.  ... Read More