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Kelly Scott Davis
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Kelly Davis’s Answers

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  • Does the closest living relative of someone deceased have the right to evict someone defrauding the surviving family?

    Joe passed away without a will, his stepson the closest relative is stuck with burial expenses while the "girlfriend" sells off the possessions for drugs and has used up bank accounts and credit cards. What can be done?

    Kelly’s Answer

    There isn't much information being provided in your question, but being a stepson doesn't confer any special rights over the property. Neither does just being a girlfriend. Joe may, however, put her name on the accounts. The stepson needs to consult with a probate attorney and may need to seek a court appointment as personal representative or administrator to get the power to step in and take control.

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  • How do i take away my dads car legally in colorado?

    my dad is 92 and has dementia.i would like to take away his car but want to do it legally correct.he lives in aurora Colorado.

    Kelly’s Answer

    Your father's doctor can contact DMV and say that it is no longer safe for your father to be driving and they can take away his license, but that doesn't mean he won't continue to drive. (After all, he does have dementia.) In order to actually take the car away you will need the legal authority to do so. If you don't hold his POA (which your father can revoke), you will need to petition the court to be appointed as his guardian/conservator. Contact an elder law attorney to assist. You might want to go to the AARP website and take the online seminar entitled "We Need to Talk" for guidance on how to approach the question with your father.

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  • Is their any protection for an heir in a will when it doesn't get into probate?

    father had a will, mother is handling the will and will not disclose any information. I know I am an heir, can she get away with not honoring the will?

    Kelly’s Answer

    If all their property was held as joint tenants, then there may not be any estate to probate. That still doesn't mean that as an heir or devisee you aren't entitled to see the will. It may be worth the small expense to have an attorney write her a demand letter.

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  • Is this illegal and if so what can I do to rectify and keep out of legal trouble

    Ok so my father passed away on Oct 19th 2015 he got a social security check every month. His ss check went into his account about 2 days after he passed I got most of his belongings from his roommate with the help of the sheriff but was not given ...

    Kelly’s Answer

    There are more moving parts to what you describe than you may suspect. In many states it is illegal to act as the personal representative of a deceased individual without having that authority granted by the court. There are summary distribution procedures that may have been available or title to the bank account could have had a survivorship interest, but no one here can tell without further information. The bottom line is that you need to talk to someone who really is a probate lawyer and not just someone who works at the bank.

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  • Better to explain bank transfers to Medicaid over the last 5 years with a promissory note or say it was rent?

    The amounts of the transfers are similar except for the last one which is quadruple the rest. If the promissory note is best there is a blank on the form that I'm not sure about. It says Borrower promises to pay Lender a total principal amount o...

    Kelly’s Answer

    Qualifying for Medicaid is not a DIY project. Your question reveals several factual issues that need to be reviewed and addressed by an experienced elder law attorney. One thing I have learned over the years of doing Medicaid planning is that it is better to be truthful and just deal with the consequences than try to hide the problem. Use the AVVO Find a Lawyer search tool to locate an experienced elder law attorney near you or go to the website of the National Academy of Elder Law Attorneys at www.naela.org. Trust me. Whatever the attorney charges for a consult will be cheaper in the long run.

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  • In Mich -have a durable POA with incapacity clause (and bank PoAs), and a social worker and/or Detective tells me no. Legal?

    In Mich -if I have a durable POA with incapacity clause (and bank PoAs), and a social worker and/or Detective tells me I can't access bank accts to pay bills, since beneficiary is in state custody, with no guardianship petition filed, yet, but bil...

    Kelly’s Answer

    You have outlined a complicated factual situation, but without seeing the language in the POA to which you refer it is impossible to give meaningful advice. Not all POAs are the same and frankly I can't tell from your question whether the "incapacity" clause refers to a description of the triggering event or that the POA is durable.

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  • Hello, my parents are elderly and not well in health. What are things that I should be doing to protect their assets?

    I have questions on Power of Attorney, Adding a child's name to their home vs selling their home, etc. Is there a website or Attorney you can refer in my area?

    Kelly’s Answer

    Estate and Medicaid planning is not a one size fits all practice. Your parents need to visit with an elder law attorney to discuss their needs. You can locate an elder law attorney in your area by going to the website of the National Academy of Elder Law Attorneys at www.naela.org. The closest elder law attorneys are Lori Hulbert in Sterling and Charles Connell in Greeley. I do not know Lori, but I have worked with Chuck in the past and would have no problem taking my own parents to see him.

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  • Does resolution of an issue justify not notifying law enforcement?

    The responsible party committed elder abuse by preventing the trustor from having visitors. The Adult Protective Service office intervened and the issue was resolved in favor of the trustor. Does the resolution justify not reporting to law enf...

    Kelly’s Answer

    It sounds like the situation was reported to APS. That in effect was reporting it to law enforcement. I have never encountered a situation where after making a report to APS the reporter had to file a second report with law enforcement.

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  • How can I keep a drug addict (active crack cocaine user) away from my eldery father?

    Hi there, I'll try to be as clear and brief as possible on this. I recently moved to Texas from NY as I needed some help with being recently disabled. And within the first week of moving here problems with his then "girlfriend" started to arise...

    Kelly’s Answer

    You can report your concerns to Adult Protective Services. You can even do it on line in Texas. They will investigate but may drop their efforts if your father tells them to go away.

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  • What needs to be in a contract that would stand up to Medicaid scrutiny for a relative caring for my mother?

    My mother needs 24 hour care according to the Dr. She is currently living with my nephew who is providing housing, utilities, food, transportation, etc. Basically, he is providing everything she needs except her clothing. In exchange my mother is ...

    Kelly’s Answer

    • Selected as best answer

    As has been stated, personal care agreements are scrutinized by Medicaid to determine whether the payments are supported under the facts. They will want to know exactly what services are being provided, how often and for how much. Your nephew can't charge more than the going rate in the community for home healthcare providers. Income and employment taxes need to be paid to the IRS. In spite of all this, personal care agreements can be a good deal for everyone involved, but you really need the assistance of an experienced elder law attorney. Mistakes or oversights in drafting a personal care agreement can be very expensive down the road.

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