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Elder Law Questions & Answers

1 Answer | Asked in Elder Law and Probate for Washington on

Q: POA QUESTION. IS IT LEGAL. SEE INFO

My uncle with POA over my father moved my dad to nursing home and removed over 100k worth of equipment from my dads home and sold it. I am the sole beneficiary of the estate. We now have buy new equipment to take care of the property. POA told us that it was for his medical care. Money was never... Read more »

Nina Whitehurst answered on Aug 23, 2019

Fro your side of the story it does appear that your uncle misappropriated funds. The law does provide legal remedies for those aggrieved by such behavior. You will need to fire an attorney and most likely pay a hefty retainer. If your uncle is collectible and sufficient dollars gone missing are... Read more »

1 Answer | Asked in Estate Planning, Family Law, Elder Law and Probate for Washington on

Q: Can. POA take cars, tractors etc from my fathers home and keep for himself. I’m the sole beneficiary of the estate. 100k

Nina Whitehurst answered on Aug 23, 2019

No. An agent acting under a power of attorney can and must only take actions that are in the best interests of the principal. Self-dealing is strictly forbidden unless the POA specifically permits it. If you are encountering a rogue attorney in fact, you might need to hire an attorney to have a... Read more »

1 Answer | Asked in Elder Law and Probate for Washington on

Q: Does POA have power to limit the time I could spend with my father to 30 minutes a day

This was not done for medical reasons.

Nina Whitehurst answered on Aug 23, 2019

No. A financial power of attorney does not confer that kind of authority on the attorney in fact, but there is not way to say with 100% certainty without reviewing the POA.

1 Answer | Asked in Divorce, Estate Planning and Elder Law for Texas on

Q: Is spouse's Defined Benefit Pension part of QDRO? Even though spouse selected single life annuity & no death benefits?

Terry Lynn Garrett answered on Aug 22, 2019

What will go into the QDRO is a matter of negotiation.

1 Answer | Asked in Estate Planning, Elder Law and Probate for Texas on

Q: Texas laws: Can A Guardian of an elderly mother, who is incapacitated, withdraw funds from her mother's living trust?

Mother & father are settlors, primary beneficiaries, & co-trustees. Mother has been incapacitated. Father has been grossly negligent in his fiduciary duties as co-trustee. He has withdrawn/spent large amounts from the trust for his own benefit & didn't use any of the withdrawals for mother. Father... Read more »

Terry Lynn Garrett answered on Aug 22, 2019

The rights of an incapacitated co-trustee of a revocable living trust depend on what the trust document says. Most revocable living trust documents state that the co-trustee, in this case the husband, shall make all decisions in that event. Similarly, most revocable living trust documents state... Read more »

1 Answer | Asked in Divorce, Estate Planning and Elder Law for Texas on

Q: Texas--Elderly parents retired & divorcing. Is wife entitled to husband's defined benefit pension plan?

Husband chose single life annuity monthly payments on his pension so he is currently receiving 100% pension payments. His pension will end at his death so wife will get nothing. Can wife claim part of his monthly pension payments when divorce is completed? Or can wife claim lump sum payment based... Read more »

Terry Lynn Garrett answered on Aug 22, 2019

The safest way to handle this may be to get a Qualified Domestic Relations Order as part of the divorce decree.

1 Answer | Asked in Real Estate Law and Elder Law for Colorado on

Q: Mother died. House is in name of trust. Do I need to tell county assessor or treasurer I'm the successor trustee?

Are there other house-related forms or reporting duties I may not be aware of for Colorado? I already filed a trust registration statement with the district court.

James Newell answered on Aug 21, 2019

At a minimum, you should update the mailing address on file with the county assessor's office, assuming address to which you would like tax statements mailed has changed since your mother died. If the trust document states that title to the house must be transferred out of the trust you will want... Read more »

1 Answer | Asked in Elder Law for California on

Q: My mom is running out of money.She wants to stay at home.

Is there a way she or I can take out a loan on her home so she can stay? So we can pay her home health care workers come and have all her food and bills paid?She owns her home and she had given me her other home that I lived in for 15 years.My son has lived with her for 2 years and has been taking... Read more »

Jeffrey Louis Gaffney answered on Aug 20, 2019

There are different options.

Many people use a reverse mortgage to take money out of the value of their house. It is basically a loan with the house as collateral and you never make payments. You keep living there and in the end, the bank gets their money back, plus a bunch of interest,...
Read more »

1 Answer | Asked in Employment Law and Elder Law for Rhode Island on

Q: How do I challenge a DPOA & amended trust that my sibling coerced my mom into signing?

Mom had original trust done in 2000 with assets being split 50/50 between sibling & myself. In 2016 I had falling out with sibling & in 2017 he took my mom to a lawyer to amend her trust giving him 100% & DPOA with unlimited powers. She was 95 at the time & had started with dementia a few years... Read more »

Neville Bedford answered on Aug 16, 2019

I don't see this as an employment law question. If you cannot afford to enlist private legal assistance, you may wish to investigate other resources that might include law enforcement if you suspect there is elder abuse being committed.

1 Answer | Asked in Elder Law and Health Care Law for Texas on

Q: Would a medical poa prevent the APS from removing my dad from his home?

Even though they consider him incompetent he still drives, bathes himself, cooks, does own laundry, fixes stuff around the house, has own bank accounts, etc.

Tammy Lyn Wincott answered on Aug 16, 2019

Having a POA does not stop the State from removing someone if they believe they are in danger. As I suggested before, you should immediately contact an elder law attorney who does guardianships as well.

1 Answer | Asked in Elder Law and Health Care Law for Texas on

Q: If I have a POA can the state remove my father from his home because they think he's incompetent?

Started out as complaint about apparent self neglect then escalated to incompetence. Dad does drive safely, does own shopping, bathes, feeds himself, even shaves himself.

Tammy Lyn Wincott answered on Aug 16, 2019

Do you have a medical power of attorney or just durable POA? I suggest you contact an elder law attorney asap. Sometimes, these investigations can get blown way out of proportion very quickly.

3 Answers | Asked in Estate Planning, Tax Law, Elder Law and Probate for New York on

Q: The IRS sent a notice of unclaimed 2017 refund + demand to file 2018 for a now dead person. Do I still need to file?

I'm the executor of Mother's estate + not in good shape to tackle this or pay to have it done. She died on Nov 4, 2018. I would say it's very unlikely she'd owed taxes, considering expenses from her long illness from Mar 2018 till her Nov 2018 death; all her MDW's were made on IRA's, etc. and she... Read more »

D. Mathew Blackburn answered on Aug 12, 2019

You should file 2018 and mark deceased and put the date of death. Without a deceased return the IRS can't know she died.

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1 Answer | Asked in Elder Law and Probate for California on

Q: Why would a petition to quiet title take 3-4yrs of litigation? Is it bcuz u assuming the other heir will fight me on it?

So how long would this process take if we assume the other heir won't say anything, no arguments from the other side? After i TRY to quiet title and ask to exclude this asset from the estate forever, using probate code 850.... oh wait, i forgot i dont only wish to quiet title inorder to correct the... Read more »

Richard Samuel Price answered on Aug 8, 2019

An uncontested case would probably take about a year. A contested case would probably take two to three years. I hope that this answers your questions.

2 Answers | Asked in Estate Planning, Elder Law and Probate for Arizona on

Q: How can I verify that my mother's will and testament is legal and names me executor and distributor of all property?

Several months ago, my mother (who passed away last week) put together a last will and testament (based on a form from WillForms.org for the state of Arizona). It is signed, notarized, and doubly witnessed by two individuals not receiving any property under the will.

The will names me as... Read more »

Nina Whitehurst answered on Aug 7, 2019

Show it to a local probate attorney. You are going to need to hire a probate attorney anyway to help you probate your mother's estate anyway. Your mother's things do not automatically vest in you; there are steps that need to be taken, and the sooner you take those steps the better.

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1 Answer | Asked in Estate Planning and Elder Law for Virginia on

Q: Children want to distribute mother in laws personal items now. She is entering a long term care facility. Can they

She is 95, entering long term care. Deemed incapacitated. 3 daughters want to empty her apt and distribute her things now while she is still living.

Nina Whitehurst answered on Aug 7, 2019

If you have a power of attorney from her that allows you to make gifts, then you can do that. Please note, however, that gifting authority in powers of attorney is not common. Absent a power of attorney, one of you will need to petition the court to be appointed as conservator of her estate.

1 Answer | Asked in Real Estate Law, Elder Law and Probate for California on

Q: I am the Conservator of The Estate. How can I legally gain access to enter my conservatee's home?

I have a court order to gain access, LAPD did not want me to enter because I would be in harms way although she was not violent she had barricaded the doors & windows, 3 officers pushed the door open 12", APS said I do not need to gain access she looks fine & does not want me in the house. I was... Read more »

Richard Samuel Price answered on Aug 6, 2019

Serve written notice on the conservatee of your request to enter and keep copies. Document the attempts that you make to enter the home and make repairs.

Try a different approach, or send a different person? It may seem a bit heavy-handed to come with police officers.

The...
Read more »

1 Answer | Asked in Estate Planning, Consumer Law, Elder Law and Nursing Home Abuse for New Jersey on

Q: Am I responsible for payment of an exorbitant fee to Assisted Living facility that was the result of the facility error?

My elderly, low income mom (on medicaid) resides in an assisted living facility . I pay her rent there every month. They added on a $4,000 charge and recently and claimed it was because they did not bill her the correct amount monthly, going 2 years back. She doesn't have this money, can they... Read more »

Madeline Houston answered on Aug 6, 2019

In order to answer this question an attorney would need to review any contracts signed by your mother and by you. Some violations of the law allow you to demand that your attorneys fees be paid by the defendant t in certain circumstances and if an attorney thinks you have such a case and it is... Read more »

1 Answer | Asked in Employment Law, Elder Law and Employment Discrimination for Washington DC on

Q: Coworker is making childish remarks and you say "your almost 70 yrs old and acting like a child."

Is one remark consider age discrimination or does it have to be a pattern of behavior?

Andrellos Mitchell answered on Aug 6, 2019

Well, it depends on what the policy is at your workplace. Generally speaking, I would say that actual... Read more »

3 Answers | Asked in Elder Law, Estate Planning and Gov & Administrative Law for Texas on

Q: Can a Son of a terminally ill parent that is not of their right mind have a document signed to sell the parents home?

Even when close friends know it is not her wish.

Terry Lynn Garrett answered on Aug 4, 2019

If a person's dementia has progressed to the point that she lacks legal capacity to contract, the contract is void and the attempt to profit from it is exploitation of an elderly person, a first degree felony in Texas. Contact APS.

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1 Answer | Asked in Elder Law for New York on

Q: Is a POA and Health Care Proxy enough to make decisions for someone who has been diagnosed with Alzheimer's?

I have an Aunt that is 83 years old that lives in NY. I live in Georgia. In 2013, when she was of sound mind, she had a NY attorney prepare a POA regarding all her finances, etc. and a Health Care Proxy. She signed and I signed.

Now she has been diagnosed with Alzheimer's. As such she... Read more »

Benjamin Z. Katz answered on Aug 4, 2019

The short answer is yes. A durable POA gives you power over her finances and the Health Care Proxy over her medical decisions. However, if her condition is not apparent to a vendor or health care provider and she is expressing resistance to your decisions, you may have problems. You may have to... Read more »

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