Tag Archives: ELDER LAW

Mom deeded farm to my siblings.

Q: My mom may be a vulnerable adult. In May of 2013 she had mild stroke. I found out that around that time my sister and brother bought her farm in Washington County by deed from her for 1000 dollars per month. The value of the land was once appraised at $237,000.00 dollars and is now paying $7,500.00 per month in gas rights, which I didn’t know until now. Does this sound right?

A: There is not enough information here to give you any reliable answer. I assume you are alleging that your mother was not competent enough at the time she deeded the farm to your siblings at such a low price. If so, if you can prove that your mother was incompetent when she sold, you may have a remedy in that you can go to court on a petition to rescind or nullify the deed. You would need a lawyer for this procedure. In order to prove your mother was incompetent at the time she signed the deed, you would need medical proof to back your claim up. This could be accomplished by an opinion of her doctor. I would pay a lawyer a retainer to look at this situation.

What options do I have with my terminally ill grandmother?

Q: What options do I have to ensure my terminally ill grandmother is receiving the best possible care during the end stage of her life. My grandmother is under hospice and living at my Uncles house in South East Florida. I am in PA. My mother was living there up until this week assisting the Hospice care team with the care of my grandmother. Not certain of the details but according to my mother, my uncle was violent with her and called the police to have my mother removed from the home. My Uncle claims to have POA over my grandmother although I have no idea if this is true or not. My mother claims he does not. I do not believe my grandmother has been deemed incapacitated, although again I have no way of finding out. I do know that she is of sound mind, but she is very weak and highly immobile as we have spoken. I am concerned I will not be able to see my Grandmother before she passes and I am really concerned about her quality of life.

A: This is more of a family dynamic problem than a legal problem. I would highly suggest trying to talk to your uncle and express your concerns. You may want to call the Hospice team and see if they will help convey your concern, but don’t count on them wanting to get involved in a family dispute. If you have to go legal, you can call the department of aging or social services agency in that county and see if they do home visits for the elderly. You can also seek a lawyer down there to advise you on what services are available and perhaps on what legal actions he can take such as a letter to your uncle expressing your concerns and requesting a copy of the POA. He can also advise you on the law of guardianships in Florida.

How do I keep a young girl away from taking advantage of my 87 year old father?

Q: While in a rehabilitation hospital, my father was getting taken care of by a young 29 something girl. After he left there, she managed to get his address and phone number. She has been to the house and calls him every day. This has been going on for seven months now. My mother has passed away so we moved my father to an assisted living facility 4 hours away from this girl. He is telling my sister and I that he loves her and is in love. She has got him convinced that he needs to go back to his house. There is money and property missing from the house and he keeps telling us that she is his friend. We are just so afraid that she is taking advantage of him but we don’t know what to do. He cannot live in the house alone. Any advice or direction would be go greatly appreciated

A: If he is mentally clear, there is little you can do except this. If you are sure money is missing, you can see if a police officer will take a report and at least talk to this girl. Not all police departments will do this, but some will. This may shake her up a bit. Dad should have a Power of Attorney at this point in his life so you need to talk to him and see if you can get him to a local attorney in order to address this. If you or someone in the family can serve as his Agent on a POA, you can file the POA with all the financial institutions where he has money on deposit and inform them to notify the Agent if any large or suspicious withdrawals are attempted. If your father is not clear headed and you cannot get him to sign a POA, then your only option besides letting this girl know she is being watched and hoping she will get the message and go away is to file for a Guardianship of your father in court. This is somewhat expensive and requires the assistance of a lawyer. I would sit down with a lawyer and discuss all of the facts before you decide what to do.

Can grandmother give money away after she is in a nursing home?

Q: How much can an independent senior (84 years old) gift money without getting penalized if admitted to a nursing home shortly after? How much money can be gifted to children each without penalization? How much money may be gifted to grandchildren?

A: The Federal Gift Tax Exclusion allows you to give $14,000 in cash or other assets each year to each of as many individuals as you want without dipping into the basic exclusion. However, if grandmother may need to apply for Medicaid funding in order to afford her nursing care in the next five years, these gifts may not be advisable. Medicaid eligibility rules have a five year look back on all such gifts or transfers made without consideration. Therefore, any gift made in the previous five (5) years of the Medicaid application and eligibility, can result in her being ineligible, or her being excluded from funding to the extent of the dollar amount of monetary gifts made without consideration. If you believe that Medicaid may be in her future, it would be wise to have grandmother consult with a lawyer versed in Medicaid law, now. There are ways of excluding some of her estate from a Medicaid claim. There are exclusions and exceptions, trusts can be created and there are allowable purchases that can be made in the Medicaid spend down process.

Brother changed dad’s will

Q: My mother died 7/24/13 in PA and she and my dad have had the same wills for the past 25-30 years dividing property equally between my brother and me. My dad went to Anchorage to live with my brother after my mom’s funeral service and I asked for a copy of their will. My brother is an attorney and works for the AG office and said it was just changed 11/1/13. It leaves everything to him. My dad is 84 and on 10/4/13 went unconscious with insufficient blood supply to his brain. He recovered but is not in good mental capacity. I would not have known anything about the change of will had I not asked. I think there is deceit and undue influence. I have numerous people who would verify what my mom’s wishes were because she spoke about it a lot before her death. My mom and dad’s other will was from PA where they lived and where all the property is. We are talking about a substantial amount of property. I don’t have the money to fight him and wonder what can be done if anything.

A: You need to confirm whether mom and dad had typical husband and wife wills in which each inherits from the other. If that is the case, your dad inherited from your mother. The issue is whether your father had competency to make the will that your brother speaks of. If you wish to have the will challenged, you probably need a doctor to opine that at the time it was signed by dad he was incompetent. For example, he was on medication at the time, did he suffer from dementia or Alzheimer’s disease, etc. In PA, you would need that to prove he was incompetent at the time. Proving undue influence would require witnesses to say your brother misled, bullied, coerced, or manipulated your dad into signing. Unless you have credible witnesses to support these allegations, it would be difficult. Unfortunately, you need to hire a lawyer in Alaska. He could contact your brother, ask for a copy of the will, and try to see if he can get an opinion from your dad’s doctor as to your dad’s competency when he entered the will. This is a tough battle. If there is a large amount of money at stake, an attorney may be able to forego a retainer if he believes there is a case.

Q: Should my parents put their house in my name?

Q: My parents are in their early 70s and in fair health and want to put their house in my name now to protect it. Is this a good idea for both of us.

A: This is something you should sit down with a local estate/elder lawyer and discuss. There are pros and cons. Pros-it reduces inheritance tax. 1) If they transfer title to you, there is no need to have the house part of the estate when the surviving parent dies. 2) You may avoid a Medicaid lien if the surviving parent never needs to apply for Medicaid within 5 years of the transfer. Cons-inheritance tax is not much for children (4.5%) so depending on the size of the estate it may not be that big of a savings. If the surviving parent needs to apply for Medicaid within 5 years of the transfer of the house for no consideration, this can give rise to Medicaid eligibility problems. Also, the parent loses control of what is often their most valuable asset which they may need to liquidate for money in order to afford a better nursing home. If the home is transferred totally out of the parent’s names, in Allegheny County, they will lose senior citizen real estate tax discounts. Just putting you on the deed with them will not result in a loss of senior citizen’s discounts. In addition, if title is transferred to you, and you subsequently sell this home, you will lose the benefit of the stepped up value you would have had if the transfer came from the estate to the buyer and you will have a full capital gains tax minus allowable deductions. There is more to this than you think, so I advise your parent to seek a legal opinion.

Cousin gave us money. Will we have to give it back to cousin’s nursing home?

Q: Pa and NJ nursing home 5 year look back. My wife and I each received $10,000 from her cousin in February of 2010. Can nursing take money back? We reside in NJ and PA. Wife’s cousin will have to go into nursing home prior to the 5 years in February 2015. The cousin currently receives PA Medicaid for health coverage. Will the nursing home make us give the money back? (which has been spent) Will there be a penalty term?

A: There is some confusion in your question so I strongly urge you to sit down with an attorney with all of your information. Simply put, a nursing home cannot make a donee who did nothing wrong return a gift. However, most gifts within the look back period trigger Medicaid penalties. It would be well worth an elder law attorney consult to determine gift ramifications and Medicaid planning options. It is the Medicaid look back, which is 5 years back from the date of eligibility, which matters. The transfer may be questioned. If you are alleging it was payment for caretaker services, you better have such services documented.

Will my Aunt lose her home to Medicare?

Q: My aunt might need nursing home care. I have been giving care at her house. Will she lose her house? She is single and owns her home. I am her executor when she dies. My aunt is on Medicare and I have lived there for 5 years.

A: Receiving Medicare benefits will not result in a claim on her home. I will assume for the purposes of this question, you mean, will she lose her home to a Medicaid claim if she should enter a nursing home. You really need to talk this over with a local elder law or estate planning attorney versed in Medicaid law. Generally, Medicaid requires the value of all property owned by the applicant in the last 5 years to be considered in the look back period, relating to their potential claim. So, if your aunt applies for Medicaid assistance in the next five years, the house may be subject to a Medicaid claim if it is still in her name. There are exceptions to this claim that may allow you to shelter the home completely or at least a portion of its value. For example, if you have been her primary caretaker and living in the home for a period of two years prior to her admittance to a nursing care facility, you may qualify for an undue hardship exception under the PA Department of Public Welfare rules. An attorney may also be able to create a trust for you that shelters a portion of her estate. This is a gross simplification of the issue, so once again, please consult with an attorney.

If wife transfers house to me, then goes into a nursing home, will she obtain Medicaid?

Q: If my wife transfers her house to me, is that a disqualifying transfer under Medicaid in Pennsylvania? I was told that if my wife goes into a nursing home and then immediately transfers her home to me (the house is in her name only), then she can still qualify for Medicaid – is this true? Isn’t there a 5-year look back period? I was also told that the look back period was eliminated.

A: Transfers between spouses generally don’t trigger penalties. The five year look back is alive and well. A spouse’s principal residence is an exempt resource. The PA Department of Public Welfare and Medicaid rules are complicated and if you have assets worthy of preserving, doing this alone without the assistance of an attorney can end up costing you. Consult an elder law attorney to make sense of all of this.

How does the Medicaid look-back rule affect property transferred to adult children?

Q: I’ve been told the rules differ from state to state. The surviving parent lives in Massachusetts. We live in Pittsburgh. If property is transferred to an adult child more than 5 years before the parent requires Medicaid assistance, how is the look-back rule handled?

A: Per federal law, the look back period runs forward 60 months preceding a transfer, so gifts 61 months before a Medicaid application are outside the look back period. Consult an elder law attorney or estate attorney versed in Medicaid law. Minor timing errors can cause thousands of dollars of loss. It sounds like you made the look back period but would consult with a local Massachusetts attorney.