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Diane Beth Weinberg
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Diane Weinberg’s Answers

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  • If I am Durable power of attorney for my grandma can I sell her house over previous poa who rented it out? She wants house sold.

    My uncle previously entitited himself to poa over my grandma. He moved her in an assisted living home and gave away what she owned in her house then rented house to my cousin. My grandma has deed and pays all taxes on property still. My grandma li...

    Diane’s Answer

    I am sorry to hear about the problem you are having with your grandmother. What you are describing is the financial exploitation of an elder, a felony in Georgia. Please contact adult protective services and give them as much detail as you can. Also, you may want to consider hiring private counsel to help protect your grandmother's rights or, if necessary, to initiate proceedings to protect your grandmother.

    Good luck!

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  • How do I obtain legal medical and financial power of attorney for my disabled son?

    I have letters from my son's doctor addressed to probate court and the social security office stating that he is physically and mentally disabled to handle his own affairs, and naming me as his medical power of attorney. I have a hand written dur...

    Diane’s Answer

    In typical attorney fashion, I'm going to answer your question as "it depends."

    To sign a power of attorney giving you the ability to handle his medical and financial affairs, your son must have what is called a capacity to contract. This means he must understand what he is signing and the implications of the document. Without knowing more about your son's condition, it's difficult for me to say whether he had the requisite capacity to sign the powers of attorney. Also, the power of attorney requires a certain number of signatures and formalities to comply with state law. That having been said, many people may not care whether your son had capacity and will simply accept the documents at face value.

    There are two other issues, however. First, the powers that your son has given you are limited to what is in the power of attorney. Thus, if the power of attorney doesn't give you the power to hire an attorney on his behalf and he finds himself in legal trouble, you will not be able to hire an attorney for him. Additionally, in Georgia, there is no requirement that a bank or other provider honor a power of attorney. Thus, you may take the power of attorney to the bank and still not be able to access the funds. In this case, you will probably need to go to court and get a conservatorship over your son to manage his financial affairs.

    I'm a little curious as to why the doctor wrote a note to the probate court; this is unusual unless there is some sort of proceeding. And the doctor cannot name you as your son's medical power of attorney. That can only be done by your son, assuming he has capacity to do so.

    You may want to get legal counsel to see whether either power of attorney (financial or medical) is effective and, if not, how to obtain guardianship and/or conservatorship over your son.

    Good luck!

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  • What would happen if one is part of a inter vivos revocable trust and has to be put in nursing home?

    2 sisters has a revocable trust/inter vivos/what would happen if one has to go to nursing home, does one in home have to claim as assets, or is home and accts still protected from nursing home, can nursing home make them pay out of trust acct, wha...

    Diane’s Answer

    Your sisters need an elder law attorney to assist them. Medicaid will treat all of the trust assets as belonging to the sister going into the nursing home until you prove otherwise. The house also will be subject to estate recovery, though I suspect there are some planning options available to them.

    This area of the law is extremely complex, so I encourage your family to get competent help.

    Good luck!

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  • If someone doesn't know that they have signed a power of attorney and that person is not a competent, is it valid.They not relat

    Related. This person is know trying to hinder her care as she is know terminally ill with cancer

    Diane’s Answer

    I'm not even a little happy about the situation you describe. You may need to call Adult Protective Services and tell them exactly what you have said here. You also may want to contact the police as this could be a case of false imprisonment (if she's not allowed to leave the house) or abuse, neglect and financial exploitation of a senior, which is also a felony. Please act quickly as financial exploitation occurs fast and the funds are difficult to recover.

    Good luck!

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  • In the state of Georgia, are you required by law to submit a deceased person's will to Probate?

    Will is over 10 years old and was made during the previous marriage. Previous spouse is executor. They have been divorced 8 years. All joint debts were settled at that time. There were debts incurred with current spouse. Probably no assets, but no...

    Diane’s Answer

    There is a yes and not to your question. Yes, you do need to file the will with the probate court in the county in which the deceased resided at the time of his/her death. The will needs to be filed in a "reasonable" time after the person died, but there is no definition of what is reasonable; the rule of thumb is within 6 months.

    Not every will needs to be probated. Probate is a process by which the court appoints an executor, and the executor manages the debts and assets of the estate. We see plenty of estates where all of the assets are either gone by the time the persons passes or where they pass outside the estate, so there is no need to probate the will.

    If you have any question, take the will to a local attorney to assess whether the will needs to be filed or filed and probated. Good luck, and I'm sorry for your loss.

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  • How do I take power of attorney from my father? (addicted to prescription pills, lifetime of drug abuse, incompetent)

    Im 31, only child. Father never "financially matured". A pharmacist that graduated from UGA. Through his career he became addicted to opioids and stimulants. Eventually lost his Rx license after 3rd suspension from Ga Board of Rx. Divorced 5...

    Diane’s Answer

    I'm very sorry to hear about your father's troubles. Unfortunately, there are rarely good answers to this situation. A power of attorney will not help the situation. It merely gives you the ability to take actions on your father's behalf; it doesn't stop him from making poor decisions or from overriding the actions you have taken.

    Conservatorship is the best option to allow you to gain control of your father's assets and preserve them. It won't keep him from buying drugs or alcohol, however; he's going to obtain them through other means. Based on your financial situation, you may not be able to become your father's conservator if your father has assets outside of real estate. Thus, you could always file the petition and have the county appoint a conservator.

    Another option, which is not ideal but which could buy time, is to report the activity to the authorities. Bibb County may have a drug and alcohol diversion program that would require your father to remain sober to stay out of jail. Once he's sober, he may be willing to take steps to protect these assets, such as transferring partial or full ownership into your name. There are no guarantees this plan will work, but it is an option. Talk to a criminal defense attorney before your take this step so that you have a better understanding of the possible outcomes.

    If your father's behavior is such that he is putting his health at risk (such as choosing to smoke a cigarette when he gets hungry instead of eating), you can go to the courthouse and swear out a warrant to have your father picked up by the police and held for evaluation.

    I also recommend you find a good Al-Anon program or another support program for family members of alcoholics. It will be invaluable.

    Good luck!

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  • If I have Power of Attorney for my parents, can I take out a Temporary Protective Order to keep my niece away from my parents?

    My niece is bleeding my 80+ year old parents financially and emotionally dry (they are all in NY). I am in GA and in the process of getting Power of Attorney for my parents. I understand that though this will give my control over their finances,...

    Diane’s Answer

    I'm not familiar with New York law, so I will give you a Georgia perspective.

    In Georgia, you need to have guardianship to take out a TPO on someone's behalf; a power of attorney is insufficient. Additionally, a power of attorney only gives you the concurrent ability to control your parents' finances; it does not give you the ability to override your parents' decision if they want to give your niece money.

    My suggestion is to consult with an elder law attorney in New York to find out what your options are to protect your parents. These are complicated issues. As long as your parents are competent, they are able to make decisions, even bad ones, on their own. If there is evidence of abuse by your niece or that your parents suffer from an incapacity that prevents them from protecting themselves, there may be legal options, including guardianship. To find a New York elder law attorney, check out www.NAELA.org or www.eldercounsel.com.

    Good luck!

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  • How can i get out of my parent's legal guardianship they have over me?

    took me to court at age 19 and got legal guardianship.

    Diane’s Answer

    You do have the ability to go back to court and request that the guardianship be lifted. To do this, you will need to show the court that the need for the guardianship has ended. You will need another person who can sign the petition to terminate the guardianship who is willing to testify as to why you no longer need a guardianship. At that point, if you have provided the court with sufficient evidence that you no longer need a guardianship, the court will appoint someone to evaluate your abilities and assess whether you still need the guardianship, and a hearing will be held on this issue as well. Even though you are under a guardianship, you do have the right to hire an attorney to assist you with termination proceedings.

    Good luck!

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  • How do you find out if a elder law attorney has court experience and a record of winning trials?

    Is there a database to check?

    Diane’s Answer

    You asked a tough question to answer. There are several ways to measure the competence of an attorney.

    Ironically, the attorney's win-loss record is not a measure of the attorney's competence. My win-loss record looks terrible, but almost all of the cases I've lost were cases I was supposed to lose. I do court-appointed work for individuals who may be subject to a guardianship. If I'm being appointed as an attorney, usually the individual does need a guardianship and is going to lose the case regardless of my skill as a litigator. My job is to ensure that the individual's rights are protected in the process, and I do. Instead look at the outcome that the attorney has been able to achieve for her clients.

    1. You can look to see how the attorney is viewed by his or her peers - does she have an AV rating from Martindale Hubbell; is he a "SuperLawyer"; does she have a certification from the state bar or other professional organization; have any complaints been successfully filed by any clients? See if you can get a referral from the attorney's clients or from other attorneys who know the clients. Ask to speak with one of the attorney's referral sources to find out why that referral source sends the client to the attorney.

    2. Look at the philosophy of the attorney. Some attorneys practice a zero-sum game, meaning that there is one winner and one loser. Some attorneys are more collaborative (a win-win philosophy) and look to coming up with solutions that satisfy everyone's interests as much as is possible. While no litigation is ever emotionally satisfying, I believe that using a collaborative approach creates a longer-lasting solution to a problem than a zero-sum approach.

    2. Bar Complaints and Malpractice lawsuits that are successful. A bar complaint is not necessarily a reason not to hire an attorney. Almost every litigator who has practiced long enough will have a bar complaint, and many will be sued for malpractice. Why? For the same reason I mentioned above - litigation is emotionally unsatisfying, and even the winners of a lawsuit are rarely happy because the underlying problem remains unresolved. And when a client loses, the emotionally unsatisfied client has to pay attorneys fees for the loss, and this results in bar complaint or a malpractice lawsuit. These claims are usually dismissed because they lack any merit.

    I would be wary of the attorney who has a claim that sticks. Also watch those complaints that allege that the the attorney took money and failed to do the work, or that the attorney disappeared and was completely non-responsive. You want an attorney who will work on your matter and who will respond to your questions and concerns in a reasonable period of time.

    3. Litigation experience. You will have to ask the attorney about how much trial litigation experience s/he has. If the attorney practices in the appellate courts, you may be able to search the attorney's name in the appellate court opinions.

    4. Continuing education. Ask about the attorney's continuing education or classes that the attorney gives. That also may give you some insight as to the nature of the attorney's practice and experience.

    I hope this gives you a starting point in looking for an attorney. Good luck with your matter.

    Diane

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  • Gaining guardianship of a special needs child

    We have a 18 year old son that was born with downs syndrome and we need to obtain guardianship for him.

    Diane’s Answer

    Mr. Early gave you excellent advice. I also want to refer you to www.gaprobate.org, a website put together by the Georgia probate courts collectively that contains all the forms that need to be filed to begin a guardianship and conservatorship proceeding. This website also contains materials that explain the guardianship and conservatorship process and can provide you guidance through the process. Good luck!

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