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Elder Law Questions & Answers
Q: My mom and step dad have a post nup on a house they purchased together, It addresses death of spouse and divorce.
1 Answer
| Asked
in
Family Law, Elder Law and Real Estate Law
for
Maryland
on
Answered on Jul 24, 2017
Answered on Jul 24, 2017
June Marie Marshall's answer
Not seeing the actual post-nup, my response is limited to your narrative. The proceeds would be marital property. Husband and wife can agree on how they want to divide the proceeds. They could split it 50/50, 60/40 however they choose. Since there is nothing in the post-nup about moving to assisted living, I'd say they are open to do what they choose.
Regarding death, do the mom and step dad have a will? If they don't have a will, they should get one. Otherwise, how assets are...
Not seeing the actual post-nup, my response is limited to your narrative. The proceeds would be marital property. Husband and wife can agree on how they want to divide the proceeds. They could split it 50/50, 60/40 however they choose. Since there is nothing in the post-nup about moving to assisted living, I'd say they are open to do what they choose.
Regarding death, do the mom and step dad have a will? If they don't have a will, they should get one. Otherwise, how assets are...
Q: Good morning, I want to know how strong of a case against sibling POA mishandling of trust
Gerald Barry Dorfman's answer
Just based on the outline you have provided, there is no evidence of undue influence or misuse of a POA (or even use of a POA). However, that does not mean you should pass up the opportunity to go over all the pertinent facts with an appropriate attorney. It is not unusual for a change in distribution to be made, or for such a change to be made without informing an individual whose share is decreased. There can be both valid and nefarious reasons for such beahvior.
Just based on the outline you have provided, there is no evidence of undue influence or misuse of a POA (or even use of a POA). However, that does not mean you should pass up the opportunity to go over all the pertinent facts with an appropriate attorney. It is not unusual for a change in distribution to be made, or for such a change to be made without informing an individual whose share is decreased. There can be both valid and nefarious reasons for such beahvior.
Q: I live with my 83 yearold mom who has dementia. I have to drive 36 miles to work. Could I get on trouble for neglect?
Terry Lynn Garrett's answer
You appear to be concerned about leaving your mother alone. Does she have a need for nursing or therapy? If so, her doctor might order this and home health care for up to 35 hours/week. If not, is there an "adult day care" such as Age of Central Texas in your area?
You cannot designate yourself your mother's agent under either a Medical or a Durable [Financial] Power of Attorney. A person must designate their own agent. If there is no Medical Power of Attorney, the doctors must...
You appear to be concerned about leaving your mother alone. Does she have a need for nursing or therapy? If so, her doctor might order this and home health care for up to 35 hours/week. If not, is there an "adult day care" such as Age of Central Texas in your area?
You cannot designate yourself your mother's agent under either a Medical or a Durable [Financial] Power of Attorney. A person must designate their own agent. If there is no Medical Power of Attorney, the doctors must...
Q: Can more than one person be power of attorney for an aging family member in a nursing home with dementia?
Sally Bergman's answer
Yes, but to be clear, both people must be identified in one power of attorney document. If you are instead saying that there was one power of attorney naming one person as agent, and then a second one was signed designating a second person as agent, in most situations, that second power of attorney invalidated the first one.
Most estate planning and elder law attorneys do not generally recommend that their clients designate more than one person at a time to act on their behalf as all...
Yes, but to be clear, both people must be identified in one power of attorney document. If you are instead saying that there was one power of attorney naming one person as agent, and then a second one was signed designating a second person as agent, in most situations, that second power of attorney invalidated the first one.
Most estate planning and elder law attorneys do not generally recommend that their clients designate more than one person at a time to act on their behalf as all...
Q: Mom passed .4 kids 2 own homes so house was put with other 2 kids & mom.Verbal Understanding to be divided equal
3 Answers
| Asked
in
Elder Law, Real Estate Law, Estate Planning and Family Law
for
New York
on
Answered on Jul 22, 2017
Answered on Jul 22, 2017
Inna Fershteyn's answer
Your question is a bit confusing- if mom passed who doesn't let you see the will? Other siblings?
I would need to see feeds to all 4 houses first to see how it was recorded. If the name of sibling was there and there was a right of survivorship the sibling gets the house outside of probate proceedings and will doesn't apply.
Second we would neeed to see if there is a will and if it exists it governs.
Now Star exemption that you mention would only apply to 1 house...
Your question is a bit confusing- if mom passed who doesn't let you see the will? Other siblings?
I would need to see feeds to all 4 houses first to see how it was recorded. If the name of sibling was there and there was a right of survivorship the sibling gets the house outside of probate proceedings and will doesn't apply.
Second we would neeed to see if there is a will and if it exists it governs.
Now Star exemption that you mention would only apply to 1 house...
Q: Can a parent deed over their house to a disabled son upon entering a nursing home to avoid having to use that asset for
Lillian J. LaRosa's answer
To generalize, yes, but the adult child disability award documents should be reviewed as well as there being the issue of whether the parent has the competence to execute deeds and legal documents. If the parent is at the point of entering a nursing home. Also, there are many considerations the parent should be aware of . There are trusts that can be set up for he benefit of the adult disabled child and therefore, meet with an attorney who specializes in Medicaid planning and special...
To generalize, yes, but the adult child disability award documents should be reviewed as well as there being the issue of whether the parent has the competence to execute deeds and legal documents. If the parent is at the point of entering a nursing home. Also, there are many considerations the parent should be aware of . There are trusts that can be set up for he benefit of the adult disabled child and therefore, meet with an attorney who specializes in Medicaid planning and special...
Q: My mother before she died put me on the deed as sol suvivership on her home. My sister believes she is entitled to a 1/3
Andy Wayne Williamson's answer
If you mother placed you on the deed during her life as a joint owner with survivorship then at your mothers passing you became the sole owner of that real property. The transfer is referred to as an "inter Vivos transfer" which based means a transfer during life.
A transfer during life via a deed supercedes a gift made by a will for this asset. This from the facts you state it appears that your sister is not legally entitled to a share of the property.
If you mother placed you on the deed during her life as a joint owner with survivorship then at your mothers passing you became the sole owner of that real property. The transfer is referred to as an "inter Vivos transfer" which based means a transfer during life.
A transfer during life via a deed supercedes a gift made by a will for this asset. This from the facts you state it appears that your sister is not legally entitled to a share of the property.
Q: I just had my fathers will over turned When can I move in to my fathers house?
Andy Wayne Williamson's answer
There is not enough information to be able to answer you question.
I understand that someone got your father to sign a will and you successfully got that will overturned in court.
However did you also do a probate of the estate yourself?
If not you likely need to complete a probate first.
There is not enough information to be able to answer you question.
I understand that someone got your father to sign a will and you successfully got that will overturned in court.
However did you also do a probate of the estate yourself?
If not you likely need to complete a probate first.
Q: Thank you for responding. I haven't backed spoke to his doctor while all of his doctors for that matter.
Terry Lynn Garrett's answer
Although consent is presumed in an emergency, in other circumstances any adult has the right to refuse medical treatment.
A Mental Health Warrant can be sought if someone is, for example, holed up with weapons and claiming that "they" are out to get him or her (be "they" aliens or the government.) That does not appear to be the situation here.
Police can transport an apparently mentally ill person to an ER with a view toward an evaluation. Here, it is not clear that your...
Although consent is presumed in an emergency, in other circumstances any adult has the right to refuse medical treatment.
A Mental Health Warrant can be sought if someone is, for example, holed up with weapons and claiming that "they" are out to get him or her (be "they" aliens or the government.) That does not appear to be the situation here.
Police can transport an apparently mentally ill person to an ER with a view toward an evaluation. Here, it is not clear that your...
Q: I have a general power of attorney of my father who has become incapacitated. What power do I have to seek medical help?
Terry Lynn Garrett's answer
A Durable Power of Attorney grants the agent power over finances. A Medical Power of Attorney grants the agent power to make decisions when the person cannot communicate.
In Texas anyone can ask DPS to administer a driving test on the grounds that someone does not appear to be capable of driving safely. Family members also sometimes take away the keys, move or disable the car.
Have you talked to your father's doctor? If you are not named on a HIPAA Medical Information...
A Durable Power of Attorney grants the agent power over finances. A Medical Power of Attorney grants the agent power to make decisions when the person cannot communicate.
In Texas anyone can ask DPS to administer a driving test on the grounds that someone does not appear to be capable of driving safely. Family members also sometimes take away the keys, move or disable the car.
Have you talked to your father's doctor? If you are not named on a HIPAA Medical Information...
Q: The nursing home where my grandma lives has gotten a temporary guardian for my grandmother and they are having a compet
Thomas Tripp's answer
It sounds like an energency temporary guardianship has been established and that the final hearing is set on the 31st. Unless you want the current proposed guardian to be appointed you must insert yourself into the proceeding with your own lawyer. The Court has appointed an attorney to look out for your grandmother's interest and they will advocate what they think is in her best interest which may or may not be what you want. I would suggest contacting an experienced guardianship attorney...
It sounds like an energency temporary guardianship has been established and that the final hearing is set on the 31st. Unless you want the current proposed guardian to be appointed you must insert yourself into the proceeding with your own lawyer. The Court has appointed an attorney to look out for your grandmother's interest and they will advocate what they think is in her best interest which may or may not be what you want. I would suggest contacting an experienced guardianship attorney...
Q: Can you tell me of there is a way to revoke a power of attorney for my grandmother?
Terrence H Thorgaard's answer
Unless it is a so-called irrevocable POA, certainly she can revoke it. She should speak with an attorney, but the first thing she should do is notify the attorney-in-fact (the person who has the POA), in writing, that it's revoked. Then tell whoever is doing the renovations to get out. That person should have a copy of the POA and will probably be willing to give your grandmother a copy.
Unless it is a so-called irrevocable POA, certainly she can revoke it. She should speak with an attorney, but the first thing she should do is notify the attorney-in-fact (the person who has the POA), in writing, that it's revoked. Then tell whoever is doing the renovations to get out. That person should have a copy of the POA and will probably be willing to give your grandmother a copy.
Q: If my spouse has late Alzheimer's and I have had a stroke and have appointed an AIF with a durable POA can my aif sign
Tammy Lyn Wincott's answer
A person acting as your power of attorney cannot sign your husband's name. Only someone named by your husband or the Courts can actually sign as an agent of your husband and they must have the authority to sell real property.
Contact an elder law or estate planning attorney in your area for a consultation, many lawyers offer it free.
A person acting as your power of attorney cannot sign your husband's name. Only someone named by your husband or the Courts can actually sign as an agent of your husband and they must have the authority to sell real property.
Contact an elder law or estate planning attorney in your area for a consultation, many lawyers offer it free.
Q: We are 84 and 86 years of age. The doctor has advised us to move closer to our son in Clyde, Callahan County, Texas,
Terry Lynn Garrett's answer
You heard wrong. If you have lived in your home for two of the past five years, you will not pay capital gains tax to the IRS on any profit from the sale. If you use the profit to buy a new home and live in it, that new home will not be counted in determining financial eligibility for Medicaid if/when one of you needs it. Talk with an elder law attorney about getting your ducks in a row.
You heard wrong. If you have lived in your home for two of the past five years, you will not pay capital gains tax to the IRS on any profit from the sale. If you use the profit to buy a new home and live in it, that new home will not be counted in determining financial eligibility for Medicaid if/when one of you needs it. Talk with an elder law attorney about getting your ducks in a row.
Q: We have heard that if we sell our property and buy a house in another city that the IRS or someone will take it if we
Terry Lynn Garrett's answer
You heard wrong. If you have lived in your current home for two of the past five years, you will not owe the IRS any capital gains tax when you sell it. If you use the net sale proceeds to buy a new home and live in it, it will be your home and not counted in determining financial eligibility for Medicaid should one of you someday need Medicaid. In addition, in Texas, you can pass your home outside your Will and so outside of the Medicaid Estate Recovery Program by using either a "Lady Bird"...
You heard wrong. If you have lived in your current home for two of the past five years, you will not owe the IRS any capital gains tax when you sell it. If you use the net sale proceeds to buy a new home and live in it, it will be your home and not counted in determining financial eligibility for Medicaid should one of you someday need Medicaid. In addition, in Texas, you can pass your home outside your Will and so outside of the Medicaid Estate Recovery Program by using either a "Lady Bird"...
Q: Hi I'm 19 an my girl friend wants to move in with me (16) her mom is immorale an insults an degrades her daughters
1 Answer
| Asked
in
Criminal Law, Elder Law, Juvenile Law and Small Claims
for
Florida
on
Answered on Jul 9, 2017
Answered on Jul 9, 2017
Andy Wayne Williamson's answer
Technically you 16 year old girl friend does not have the right to choose where she lives. It is up to her parents.
Your biggest danger is that she is a minor and while you do not state anything about sexual relations, if such is occurring you could get prosecuted for statutory rape. The biggest danger is her mom accuses you of the same and you have to deal with the criminal court system. I really can't say what you should do but I suggest you be very careful.
Technically you 16 year old girl friend does not have the right to choose where she lives. It is up to her parents.
Your biggest danger is that she is a minor and while you do not state anything about sexual relations, if such is occurring you could get prosecuted for statutory rape. The biggest danger is her mom accuses you of the same and you have to deal with the criminal court system. I really can't say what you should do but I suggest you be very careful.
Q: My parents are 89 & 90. My Dad still drives. He should not be driving. What is my liability?
2 Answers
| Asked
in
Civil Litigation, Family Law, Elder Law and Car Accidents
for
Oregon
on
Answered on Jul 5, 2017
Answered on Jul 5, 2017
Joanne Reisman's answer
If you father does not live in your house, isn't driving your car, and isn't listed on your car insurance, I don't think you have any legal ties to him such that the damages for an accident he causes will come back on you. The indirect financial problem would be that if he causes an accident that results in him getting sued and losing money or property, that may make it so he comes asking you for financial assistance.
Otherwise, there is the problem of him being a danger to others on...
If you father does not live in your house, isn't driving your car, and isn't listed on your car insurance, I don't think you have any legal ties to him such that the damages for an accident he causes will come back on you. The indirect financial problem would be that if he causes an accident that results in him getting sued and losing money or property, that may make it so he comes asking you for financial assistance.
Otherwise, there is the problem of him being a danger to others on...
Q: My mothers Will says you can't leave out any document she created. how can that be verified?
Dr Kenneth V Zichi J.D.'s answer
This is a VERY fact specific question, that can only be answered by referring to all the documents: trusts, deeds and anything else that may apply! You cannot get an answer here, but only from an attorney who actually reviews all the documents.
One of the biggest advantages of trusts is that they avoid probate. On of the biggest problems with trusts is that they 'avoid probate' and therefore there isn't a single authority viewing all the documents. Yes, there is no 'one size fits all'...
This is a VERY fact specific question, that can only be answered by referring to all the documents: trusts, deeds and anything else that may apply! You cannot get an answer here, but only from an attorney who actually reviews all the documents.
One of the biggest advantages of trusts is that they avoid probate. On of the biggest problems with trusts is that they 'avoid probate' and therefore there isn't a single authority viewing all the documents. Yes, there is no 'one size fits all'...
Q: It has been suggested that my mother, age 87 with dementia, who lives in California and owns her home outright,
Sally Bergman's answer
There are many issues involved in what you suggest that could have serious consequences if not done correctly. For example, if the home has increased substantially in value since the time your mother purchased it, there could be a large capital gains tax assessed. As well, if she needs to qualify for Medi-Cal benefits, some transfers could result in large penalties if not done correctly. You should talk to an elder law attorney. In looking for one, try to find an attorney that does this as...
There are many issues involved in what you suggest that could have serious consequences if not done correctly. For example, if the home has increased substantially in value since the time your mother purchased it, there could be a large capital gains tax assessed. As well, if she needs to qualify for Medi-Cal benefits, some transfers could result in large penalties if not done correctly. You should talk to an elder law attorney. In looking for one, try to find an attorney that does this as...
Q: I would like to access my mother's medical records but she has dementia - what should I do?
Terry Lynn Garrett's answer
If your mother has named you in a HIPAA Medical Information Release, present that and ask to see the records. Depending on the language, you may also have authority to see her records if you are named in her Medical Power of Attorney. If you are named in neither of these and need to see records in order to care for your mother because she has a dementia diagnosis, you will need to apply to become her guardian. For this, hire an Approved Guardianship Attorney (the State Bar of Texas website...
If your mother has named you in a HIPAA Medical Information Release, present that and ask to see the records. Depending on the language, you may also have authority to see her records if you are named in her Medical Power of Attorney. If you are named in neither of these and need to see records in order to care for your mother because she has a dementia diagnosis, you will need to apply to become her guardian. For this, hire an Approved Guardianship Attorney (the State Bar of Texas website...
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