Elder Legal Questions

Many people forget that while we pay into Medicare and Social Security with every paycheck, none of us pays into Medicaid.  Medicaid is a loan from our fellow taxpayers.  Naturally, people from Maine to Hawaii, while willing to give you a loan to pay for your care, are not terribly interested in opening their wallets so that your son can have an inheritance.  We need to think of our legacies not just in financial terms but in terms both of what we havve already done for our children by raising them and in terms of the emotional and spiritual legacies we leave.... Read More

Accusations by your children and others may be painful but they carry no legal weight.  If the State of Florida has cut off your food assistance, that is a matter to discuss with the relevant agency.  You may not need legal representation or you may want the help of an elder law attorney.  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

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

Those funds are your mother's and should be used to pay for her care.  Hiding them from Medicaid, for whatever purpose, is Medicaid fraud.  She will not qualify for months, probably years.  You will be criminally prosecuted. Your fellow taxpayers may be willing to loan money to pay for your mother's care.  They are not willing to loan her money so that you can steal from her.... Read More

It is difficult to say or to guess how you -- or a court -- would calculate your damages or if you can physiically and financially manage to get the sheriff to enforce a court order to collect those damages.  The most important thing may be to stop the abuse.  Report it to Adult Protective Services.... Read More

Your mother, not your sister-in-law, has the right to choose who will visit her and who she will speak to. An agent under a Medical Power of Attorney has no obligation to convey information to anyone but health care providers.  (In some states a guardian may have an obligation to convey certain information to certain relatives who elect to receive it.)  ... Read More

A beneficiary on an account receives the money after the account holder's death. Have your father sign a Durable Power of Attorney appointing you as his agent ASAP -- before his dementia makes him legally unable to do so. Also have him sign a Medical Power of Attorney so that you can speak for him in making medical decisions when he is no longer able to communicate.  This should be accompanied by a HIPAA Medical Information Release Form so that the doctors can talk to you.  ... Read More

If you are not agent under a Durable Power of Attorney granted by your wife and have not been appointed her guardian or community administrator by a court, you would appear to lack authority. If a letter from your wife is insufficient, contact a local attorney who specializes in consumer law.  Also contact your state department of insurance; your wife can file a complaint and let the insurance company know that she is doing so.... 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