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Kelly Scott Davis
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Kelly Davis’s Answers

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  • Can I get a POA even though my sister already has one for my mother

    My sister has POA for my elderly mother (85 years old) and she lives with her. My mother suffers from alzheimer's and my sister is her proxy. My mother cannot feed herself, use the bathroom on her own and I just found out she has bed sores. My...

    Kelly’s Answer

    As an elder law attorney, I disagree with the advice regarding the ability of your mother to execute a new power of attorney. The mere diagnosis of Alzheimer's does render your mother incapacitated or incompetent. Capacity is not an all or nothing determination. Even with Alzheimer's she may still have sufficient capacity to understand and execute a new document although it would require a careful assessment by an experienced elder law attorney to find out. The problem would be getting her to the attorney. I doubt if your sister would be willing to cooperate. Since bed sores can be life threatening, you should immediately report this matter to Adult Protective Services. Then you should look into petitioning the court to be appointed as guardian.

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  • What is the best way to orchestrate the transfer of real estate from both spouses to one spouse for PACE application purposes?

    We are planning to hire an elder law attorney to complete the PACE application for my father. He currently is taken care of by my mother and both live at home. The program is perfect for him but they have assets (real estate) in both their names...

    Kelly’s Answer

    You should discuss this in private with the elder law attorney you are planning on hiring. Medicaid planning involves some very complex issues and each case is different. Simply ask the attorney what he or she will do and have it spelled out in the fee agreement.

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  • Brother with DPOA will not tell me where my Mother is.

    Brother and Mother live in Texas, and I am in California. Mother was in an Independent Living Facility, but after a fall, was admitted to in-patient rehab facility. She is no longer there and brother will not tell me where she is. He said she doe...

    Kelly’s Answer

    I would agree with Attorney Paxton's assessment and would only advise that you don't make too much of the $10 sale price. I assume that since you are being kept out of the loop that you had to get that number off the deed. The transfer of title generally requires that consideration be given. By custom a "$10 and other valuable consideration" figure is used. It doesn't matter if the actual sales price was $500,000 or $1,000, the deed usually recites $10.

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  • Can you use a durable power of attorney to file a transfer on death deed?

    My wife's grandfather has dementia and we have been caring for him in his home for nearly three years. He made his intentions clear that he wants her to inherit all of his property when he passes. He did make out a will stating this but it was aft...

    Kelly’s Answer

    There are several moving parts to your question. The mere authorization to engage in a real estate transactions is not sufficient to make a gift. It is generally required that the POA contain specific gifting language. If this language is lacking, it may still be possible to execute a new POA. The capacity to execute a transfer on death or Ladybird deed is more akin to testamentary capacity. When you say that that grandfather's mental condition has deteriorated, you really should have the assessment done by an experienced elder law attorney. There may be other routes to achieving the goal.

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  • How do I help paralyzed senior in another state, that children or mistreating, they have power of attorney

    He lives with his daughter and her husband. They will not allow him to have company. After his nurse leaves, no one comes to check on him. He has a decent income.He just wants to leave in assisted living, be around other people. They don't take ...

    Kelly’s Answer

    If it is their house the daughter and husband can control who has access to the property, but they still have a duty t6wards him. If he is competent he can revoke the power of attorney and decide for himself where he wants to live, but due to the circumstances it might be difficult to afford him the opportunity to discuss the situation with an elder law attorney. If he revokes the POA, the daughter might file for a conservatorship, but at least the matter would be before the court. At the very least you might want to report the matter to Adult Protective Services. They will investigate. The fact that he is left unattended may be an indication of abuse or neglect. The agent has a duty to keep him in a safe environment and long periods without checking in on him can hardly be considered as adequate care.

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  • Can the Nursing Home take the full value of a life insurance policy?

    A friends mom had to be put into a nursing home and her only income was Social Security. She has a policy valued at 17,000. My fiend is the beneficiary. The home told him that he could use it to make her pre planned funeral arrangements and he di...

    Kelly’s Answer

    Your friend doesn't have any interest as beneficiary until the insured person dies. Until then it is his mother's policy and she can always change the beneficiary or cash in the policy. If her only income is Social Security it is likely that she will need to qualify for Medicaid. To do that she can only have limited assets. The cash value of life insurance in excess of $1500 is treated as an available resource and will keep her from qualifying. An irrevocable prepaid funeral plan is exempt. It sounds like all the nursing home was suggesting was to convert a portion of the cash value into a prepaid funeral plan. That is a good thing as your friend won't have to be troubled with her funeral costs when she passes away. The excess could be spent on other exempt assets for her or used to pay for her care.

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  • I am currently living in the state of wyoming had a critical accident in march n utah here i was living i need a lawyer

    The other party has no insurance and doesnt even wanna talk to me... Then i have lost my job my vehicle my health. Very injured n the insurance company wants me to close in 90 days from accident date for 1000 need referal for someone who can pract...

    Kelly’s Answer

    Use the AVVO Find a Lawyer search tool to locate a personal injury attorney licensed in Utah.

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  • My moms injury lawyer is going after trusteeship of her settlement funds due to her inability to make her own decisions. Help!??

    My sister and I take care of our disabled mother due to a motor vehicle accident that happened in 2008. Our lawsuit has been settled for a large sum of over $400 grand. The lawyer has advised it will take until mid may to release funds when my mom...

    Kelly’s Answer

    Settlement proceeds are typically paid into the personal injury attorney's trust account to pay off the incurred costs, expenses, and fees before making distribution. If the attorney has reason to suspect your mother suffers from diminished capacity he will need to either have a conservatorship or a trust established to receive and manage the funds. You haven't given any legal reason for the attorney to turn the money over to you.

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  • Can POA be used acting as/for mother to place her in a skilled nursing facility without enacting disownment provision in will?

    Mother is an invalid. Money is limited. Currently 24/7 caregivers cost $15,000/month. Skilled nursing facility is the best option, for care/cost. Years ago WILL was written with a provision to disown anyone "who put her in a nursing home". Four ch...

    Kelly’s Answer

    this isn't really a nursing home abuse question so I changed the practice area tag. Since the agent under a POA has a duty to act in the principal's best interest, and it might be a necessity that your mother be transitioned into a nursing home for her health and safety, there may be a possibility that the disinheritance clause would be deemed void as against public policy. You need to consult with an elder law attorney regarding the law in the state where your mother resides. If it is deemed in her best interests to be transitioned into a nursing home, a call to Adult Protective Services could get the ball rolling by forcing a guardianship to be established and requiring that the guardian undertake appropriate measures to keep your mother safe.

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  • My father died in October and has several court judgments against him. Do those judgment's go away now that he is gone.

    My Father passed away in October 2014. He had several court and personal judgments against him. Do those judgments still have to be paid now that he is dead. Also, a lot of assets were left to my children will they be effected. Lastly can I st...

    Kelly’s Answer

    I am not licensed in Georgia, but where I do practice one reason for opening a formal probate is to cut off creditor claims. If a creditor is given proper notice and they fail to file their claim in the manner and within the time provided by statute, they don't get paid. It can amount to a considerable savings. You will need to talk to a probate attorney in Georgia to learn your options.

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