Elder Legal Questions

He himself has the choice.  If he has named an agent under a Medical Power of Attorney, that person can be his voice.  If not, most states turn first to the spouse.  Frustrating though you may find the current situation, you do not have authority to alter it.  What you can do is try to persuade the wife, perhaps in a family meeting, perhaps in a family meeting mediated by a social worker or professional guardian experienced in such matters.  Ask the social worker at the facility for recommendations or contact your state guardianship association.  Be sure to gather as many facts as you can first.  You may think that he is not being provided the necessary therapy, but the doctor may have ordered what he or she finds appropriate under the circumstances.  Your first visit may be with the doctor.... Read More

The answer varies from state to state.  Some states, such as Pennsylvania, file a lien on the house when a person applies for Medicaid.  Others, such as Texas, do not consider the home an asset as long as the person has an intent to return and even allow the person or her agent under a durable power of attorney to record a deed transferring the property on death, free of probate and free of Medicaid estate recovery.  To learn about the law in Oregon applicable to a particular situation, you might want to contact a local elder lawyer.  You can use 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

Although some states still have filial responsibility laws on the books, only three enforce them.  Virginia is not one of the three.  Nonetheless, it sounds as though it would be a good time for your mother to consult an elder law attorney, sign a Medical Power of Attorney and Durable [Financial] Power of Attorney and related documents even if you do not want to be her agent.  She 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

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

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

While Medicaid is a federal program, it is administered by the states.  Each state administers it a bit differently and has slightly different rules.  You might want to find a lawyer in your mother's state using the Find a Lawyer function of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

By "removing [your] name from the title" you will be making a gift which, if made in the 60 months before you apply, would delay your eligibility for nursing home Medicaid, perhaps for months, perhaps for years.  To safely do Medicaid planning, consult an elder law attorney.  You might 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

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

A guardian of the estate (conservator) is rarely appointed when an agent under a Durable Power of Attorney has not violated her fiduciary duty.   A guardian of the person (determining residence, etc.) is rarely appointed when there is an agent under a Medical Power of Attorney.   In some states you do not need to be represented by an attorney to oppose a guardianship but do need to be represented by an attorney to oppose an applicant.  Contact your state bar to find an attorney to represent you.    ... Read More

Neither of your should be "overseeing" changes to your grandmother's Will.  It is her Will and her decision.  If you think that your aunt is currently violating her fiduciary duty (her duty to put your grandmother's best interests first), contact a local elder law attorney.  Keep in mind that your grandmother may well want to leave things to someone who is caring for her in her last days -- and that you are not.... Read More

It appears that there was no written agreement.  She may have no place to live now but that does not mean she cannot find one.  In consideration of her long service, you might help her.  There is subsidized senior housing in addition to Section 8 Housing.  Contact your local Area Agency on Aging.... Read More

Medicaid only approves skilled nursing facilities.   To have her room and board and some of her care paid by Medicaid she must have a medical necessity for skilled nursing/skilled nursing supervision or be so advanced in dementia that it is unsafe for her to live elsewhere. She must also meet certain income and asset tests.  If she does no have a medical necessity, there are room and board homes which will take her in exchange for her Social Security.  Contact your local Area Agency on Aging.... Read More