Elder Legal Questions

They can do nothing.  You are correct that when your brother, the principal, died you lost all authority as agent under his Durable Power of Attorney.  Beware of the old trick of trying to make a family member sign as "responsible person," which makes you personally responsible for the bill.  Also understand the nursing home's incentive:  Medicaid pays them about $200/day but $800 for someone with covid-19. ... Read More

While the agent under a Durable Power of Attorney has authority over the person's finances, the agent under a Medical Power of Attorney has authority over their person, including communicating their wishes when they are unable to do so.  Are you the agent under your mother's Medical Power of Attorney?  If so, you may be able to get her discharged to her care.  Please note that caring for someone with Alzheimer's is a very difficult, 24/7 task which often becomes impossible.  For example, you may not be able to keep your mother from wandering, possibly out the door and down the street while you are asleep.  You cannot keep her from falling, which could result in a serious injury.  You may exhaust yourself with all the hand feeding, toileting, diaper changing and cleaning. There may be some help available at home through Medicare if your mother needs a scheduled visit by a registered or licensed nurse, a physical or speech-and-language therapist.  Typically we see the nurse come once a week, the therapist twice and a certified nurse's assistant come three times to help with bathing.  Some states offer more under Medicaid waiver programs but there are waiting lists. The reason many people wind up in a skilled nursing facility is that this is no longer enough. If you are the agent under your mother's Medical Power of Attorney and can get your mother discharged with your care, please get everything in place first.  You may want to talk with people at your local Alzheimer's Association, call the Alzheimer's Association hotline, talk with a geriatric care manager and determine just what kind and how much care you can pay for out of pocket.  You may want to join a support group for you and put together a group using lotsahelpinghands or sharethecaring.  Once all this is set up, you may want to talk to an elder lawyer about getting your mother discharged to your care.  You can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org)          ... Read More

Your mother cannot qualify for Medicaid with a life insurance policy with a face value over $1,500 but she can hold an irrevocable burial policy.  You may want to discuss her entire situation 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

While strictly speaking you do not need legal representation, an attorney who has experience with APS can guide you in your effort to get the case dismissed or at least designated "not proven."  To find an elder lawyer near you, you might use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Your mother's estate is respondible for her medical bills, not you. Should your mother be admitted to a skilled nursing or assisted living facility, cross out "personal representative" wherever it appears and write in "agent under Durable Power of Attorney" or "DPOA agent" or, if there is no Durable Power of Attorney, "next of kin."  The phrase "personal representative" makes you personally responsible for your mother's bills.  It is illegal for a nursing home which accepts Medicare or Medicaid to suggest or require a third party guaranty of payment but it is still common.  ... Read More

Texas Medicaid does not count one car.  While she cannot gift it to you now without affecting her Medicaid eligibility, if you are not her only heir (and so could transfer title with a DMV affidavit of heirship after she passes), she might want to sign DMV forms transferring it to you on her death free of Medicaid Estate Recovery.... Read More

If the VA planning was done properly and not by some rip off artist (many selling such trusts and annuities are), your mother should not be ineligible for Medicaid.  You might want to show the actual documents to an elder lawyer and discuss her situation.  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)... Read More

If I understand you correctly, you and your sister would rather expose yourselves and have your mother die in your home or in your sister's home in another state that have her cared for and die in a nursing home where she might infect others.  This may not be doable.  She may not be able to travel.  If she is able to travel, it probably cannot be by public transportation, such as a plane.  If you or your sister drive to get her, put her in a car and drive her to one of your homes, you are greatly increasing the chance that you will become infected and unable to care for her or yourselves.  You write that you and your siblings are all over 65.  A Kaiser Family Foundation study of people over 65 admitted to hospitals with covid-19 found that ALL of those who were placed on ventilators died.  You and your sister could also infect others.  If your mother is 95 and ill enough that she needs 24/7 care, she may not survive the trip.  This is particularly true if she is as near death as the doctor described:  someone who is better off receiving comfort care.  If she is, please note that as we approach death, our bodies know that we do not need further nutrition.  Withholding it is not starving someone to death:  it is letting life take its course.  While your wish to care for your mother is laudable, sadly, you may not be able to carry it out.  After discussing the situation further with your siblings, you might want to see whether you can communicate with your mother by tablet or by cell phone and then talk with a discharge planner at the hospital.  A hospital is not allowed to discharge someone to an unsafe environment.  Given what you wrote of your mother's condition, discharge to a skilled nursing facility may be much safer than discharge to your car and your home.  I know this must be difficult, excrutiatingly painful.  Too many of us are in this position, having to accept what we would otherwise find unacceptable. ... Read More

If your aunt does not have legal capacity to contract, say, to sell her home or start a business, she does not have legal capacity to sign a Durable [Financial] Power of Attorney.   A guardianship (conservatorship) must be sought and can only be awarded by the local probate court. If your aunt does not have physical capacity to sign or can only make an "X", some states will allow a notary, with witnesses, to sign for her, making a special notation on the document.  From your description, it appears that your aunt also cannot speak.  If she cannot understand the meaning of the document and cannot somehow communicate that she wants to grant a POA, this approach cannot be used.  Again, someone must seek guardianship.  ... Read More

Everyone is free to appoint whomever they want as their agent or to not appoint anyone -- unless they lack legal capacity to make the appointment.  If you believe that mental deterioration has reached this stage, contact a guardianship attorney about pursuing guardianship/conservatorship.... Read More

The authority of an agent under a Durable Power of Attorney ends when the person granting it dies. The executor or administrator of a person's estate has the duty to collect the assets, pay the debts and distribute what remains to the beneficiaries under the Will or, if there is no Will, the heirs under the state's laws of heirship.  This could include evicting anyone in the home so that it can be sold.... 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