Elder Legal Questions

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

If you are not your father's agent under either his Medical Power of Attorney or his Durable [Financial] Power of Attorney, it seems unlikely that you can override your stepmother's decisions.  When there is no Medical Power of Attorney, the Texas Health and Safety Code directs health care providers to turn first to the spouse for directions.  When there is no Durable [Financial] Power of Attorney, the Texas Estates Code allows a spouse to seek appointment as a Community Administrator, handling the couples' community property.  If your father has significant separate property (and he might, since this is apparently a second marriage) and lacks legal capacity, you can seek appointment as guardian of his estate.  The Texas Estates Code gives preference to the spouse but that preference can be overriden by a showing that she is either robbing him or not acting in his best interest.  To pursue this further, you might want to talk with a local member of the National Academy of Elder Law Attorneys (www.naela.org) or seek an Approved Guardianship Attorney on the State Bar of Texas website.  Please remember that many practice in counties other than that in which they are listed.... Read More

If someone is mentally disabled to the point of lacking legal capacity to make her own financial decisions, she also lacks legal capacity to grant a Durable [Financial] Power of Attorney.  Her estate (assets) will need to be placed under a guardianship.  Search for an Approved Guardianship Attorney on the State Bar of Texas website and consult one in your area.  Keep in mind that many practice in counties near the one in which they are listed.... Read More

Please show the Power of Attorney 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). Depending on the circumstances, you may be able to either (1) sell the home as your sister-in-law's agent under a Durable Power of Attorney or (2) check the "intent to return" box on a Medicaid application and transfer it to her granddaughter on her death by signing and recording a "Lady Bird Deed."  ... Read More

If your mother's dementia is advanced, she likely lacks legal capacity to grant either a Durable [Financial] Power of Attorney or a Medical Power of Attorney.  Search "Approved Guardianship Attorneys" on the State Bar of Texas Find a Lawyer website and talk to one (or more) in your area.  You will need to file for guardianship or her person and possibly of her estate.  For this you will need a Physician's Certificate of Medical Examination (PCME).  You can download the form from the webstite of the Travis County Probate Court.  Please note that while guardianship will allow you to consent to medical treatment, including psychiatric treatment, it will not allow you to involuntarily commit your mother.  For this there must be a mental health commitment.... 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

Irrevocable trusts can be valuable tools for protecting your assets if you're planning on qualifying for Medicaid, and for minimizing probate when you pass away- but can also be wonderful tools for lawyers to rip off clients. A trust should cost no more than $2500- $3,000. I have heard of lawyers who charge double or triple that amount. Most important, a consultation is always necessary to first determine whether you really need a trust.    ... Read More

This is a complicated question.  Technically as a joint owner, the money is at least 1/2 yours.  I presume all of the money in the account is derived from her assets and income.  Do you have a power of attorney for her?  If so, that gives you certain fiduciary duties to spend her money for her best interests.  What was her intent when she put you on the account?  Does she have enough in assets to pay for her care?  I think this question warrants a more in-depth discussion with an attorney who can then give you some guidance.... Read More

Why are you being evicted?  Is it for non payment or some other breach of the lease and, if so, how long has it been going on?  You can try to negotiate an extension but you'll have to pay the rent as you go for certain.  If suit is filed, you must defend in order to try and delay eviction but if you cannot cure the breach, eviction is inevitable.  You should be actively looking for a new home so that you give yourself as many options as possible.  Your husband's doctor should also write a note or letter saying that moving now would be detrimental to his health.  You may need to present that to a Judge if litigation happens.... Read More

It isn't illegal per se for your father's ex girlfriend to use your last name, depending on what she's using it for. What kind of public records? When you received a call about refinancing your father's property, was her name mentioned, or was it a random telemarketing call? Regardless, I would be concerned as well. First, ask your father whether he made any transactions with this ex, such as putting her name on the deed to his house, lending her money, making her power of attorney, or making a will and putting her in it.  Then, whatever his answers, you can't be too safe. Have your father make a new will, and a power of attorney, and do a deed and lien search on his house to make sure this unscrupulous-sounding ex has not falsified documents to enrich herself.  Finally, depending what you find (or to handle all of this), you'll want to hire an attorney to contact this ex, minimally to advise her to stop using your name to falsely claim to be next of kin to your father, and if necessary, engage in other litigation.   ... Read More

Yes, as the attorney-in-fact for your brother, you can be sued by a caregiver, even if unlicensed, who is injured on the job.  Treat everyone as an employee with payroll withholding.  You can get worker's compensation insurance to protect yourself and your brother from caregivers being injured on the job.  You can also discuss with his homeowner's insurance if there is any liability coverage included.  If your brother qualifies for SSI or Medi-Cal, he may also get IHSS to pay for caregivers.... Read More

If your co-executor can act alone under the terms of the will, unless the person is doing things that are violating the law or the will, or unnecessarily costing the estate money, there's nothing you can do about it. If the co-executor is stealing from the estate, or unnecessarily costing the estate excessive money, you can bring a proceeding in surrogates court for an accounting, to have that person removed as co-executor, and/or surcharged (fined) when the final distribution of assets is made. ... Read More

If she has a reverse mortgage, she shouldn't have a mortgage payment. If you stop paying on her credit cards, she may be sued for the bills and have a judgment against her. If she has no credit and mounting bills, of course she goes deeper and deeper in a hole.  Someone has to pay for her expenses. The bigger concern that I would have is paying for her medical costs and care.  Does she receive Medi-Cal?  Is she eligible for other needs-based assistance, such as SSI?... Read More