ELDER LAW QUESTIONS Why do I need a will ? A will is a document in which you state your intentions of how you want your property distributed after you are dead. When you die, your property must pass to someone. Without a will, state law will determine how it is distributed. These laws are called the laws of intestacy. With a will, you are making the decision about how your property should be distributed. In addition, if you have minor children, you can make provisions for their care and support if you should die. Even if you have a trust, a will is necessary to cover all the property not a part of the trust. What is a power of attorney ? A power of attorney gives legal rights and powers to someone who will act on your behalf in financial, business, or other matters when you cannot act for yourself. What can someone holding power of attorney do ? The person holding power of attorney can withdraw money from bank accounts, trade stocks, pay bills, sign tax documents, sell real estate, and cash checks to the extent authorized in the power of attorney. The money must be used for your benefit. In Pennsylvania, the person receiving a power of attorney is now called an "Agent." Can the person with power of attorney give gifts of your money to himself or herself or to others in my family ? This depends on the wording in the power of attorney and on state laws. Some state statutes require gift-making powers to be specifically stated in the document. A well-drafted power of attorney will give the right to make gifts if you want to provide that privilege. The power of attorney may limit the amount of gifts or number of people who receive them. The agent acts in a fiduciary capacity and all actions under the power of attorney must be in your best interest. Ask your lawyer to explain this in detail. Can the holder of a power of attorney be held liable for his or her actions ? Yes, but only if the person acts with willful misconduct or gross negligence. If the individual keeps your best interests in mind, he or she will not incur any liability. Can I fire the person holding power of attorney ?   Can I change my power of attorney ? Yes, you may revoke the power of attorney at any time by putting the revocation in writing and sending this to the agent. It can be just a simple letter. What kind of records should be kept by the person holding power of attorney ? Accurate records of actions taken under the power of attorney should be kept in order to answer questions that may be raised in the future. Your funds must not be commingled with the person’s personal funds. What does it mean to be a fiduciary ? The person who has power of attorney serves as your fiduciary and must always act in your best interest and make decisions with your wishes in mind. The fiduciary shares control with you and does not have the same responsibility as trustees or executors who have total control over an estate or trust assets. I need to get a power of attorney over a family member.   I’m not sure the family member will give it.   Can I get it anyway ? No, you can only have power of attorney if the person wants to give it and if the person is competent. You cannot just "take" power of attorney. If the person truly cannot handle his or her affairs and will not give a power of attorney to someone or is no longer competent to execute a power of attorney, a guardianship proceeding may be needed. What is a living will ? Living wills give instructions regarding treatment if the individual becomes terminally ill or is in a coma or persistent vegetative state and unable to communicate his or her wishes. The living will states under what conditions life-sustaining treatment should be terminated. If an individual wants to avoid life-sustaining treatment when there is little or no chance of recovery, a living will should be drawn up which would take effect only when that person is incapacitated. It does not take effect if a person is not in these conditions and is just being treated. What is a health care proxy ? A health care proxy gives someone the authority to make health care decisions on another person’s behalf when the individual is unable to communicate such decisions. Sometimes, it can be incorporated into the power of attorney. What property is subject to probate ? The probate estate includes all property owned by the deceased at the time of death. Life insurance and property owned jointly or in trust by the deceased is not part of the probate estate. Jointly owned bank accounts pass automatically to the surviving joint owners upon the death of one owner without going through probate. Non-probate property is still part of the deceased person’s taxable estate. How is the probate process started ? A petition for probate of the will must be filed with the appropriate court with the original will and a certified copy of the death certificate. Notice must be mailed to all the deceased person’s "heirs at law," usually the surviving spouse, children, and children of any deceased children, and to those named as beneficiaries in the will. A notice also must be published in a local newspaper and sometimes in a legal publication. The notice advises people that the person has died and if anyone owes the decedent any money or is owed money by the decedent, they should come forward. What does the executor do ? The executor gathers assets, pays estate debts, and pays the beneficiaries. Usually this is done through an attorney. The executor also files a state inheritance tax return. If the estate is worth more than $1.5 million, the executor also must file a federal-estate tax return. The executor generally works with an attorney to settle the estate. Can an individual probate an estate without help from an attorney ? Usually an attorney is needed. Most courts have rules familiar only to those who work with them regularly, and experienced attorneys know how to handle situations that may arise. In addition, an inheritance tax return is usually something that the lawyer would do. What taxes are due ? State inheritance tax and sometimes federal-estate tax must be paid. Your lawyer can explain in-depth what taxes, if any, may be owed on your estate. Can probate be avoided ? Yes, in certain situations. Probate involves only the court process of transferring property. For example, if a husband and wife own everything jointly, the jointly owned property would go to the surviving spouse and no probate is necessary. This is the same for other joint owners of property. Property in a trust would go to the beneficiaries outside of probate. Life insurance proceeds and some retirement benefits go to the named beneficiary. Even when property does not pass through probate, if a tax return is required, much of the work of administering an estate must still be done. Should I get a living trust ?   What about the living trust "kits" sold to avoid probate ? There are some good reasons to have a living trust, which your lawyer can explain. Many times, people who are in the business of producing living trusts portray the probate process as something to dread. It is not. In some states, probate can be time-consuming. In other states, it is not so time-consuming. Although probate can take some time, usually most of the estate can be distributed to the beneficiaries in the meantime. In addition, a trust does not prevent taxes from being owed. People who feel they want to avoid probate should consult an attorney before deciding to use a living trust kit or a non-attorney-drawn living trust. Can I transfer assets to become eligible for Medicaid ?   Will my family or I have a legal problem if I do ? A 1996 law, making it a crime to transfer assets to become eligible for Medicaid, was replaced with a law that made it a crime to advise someone for a fee on the transfer of assets to obtain Medicaid. The law is not being enforced at present, but the law could change. Those considering applying for Medicaid should contact an elder-law attorney well before the need arises so the attorney can properly advise them. Even if a nursing home admission is imminent, an elder-law attorney should be consulted to determine what property could be protected. DIVORCE QUESTIONS What is needed for a no-fault divorce in Pennsylvania ? The marriage must be irretrievably broken, and there must be a waiting period. One type of no-fault divorce has a 90-day waiting period—the other a two-year waiting period. There are reasons for choosing one or the other or both in the complaint. Your attorney will explain. Does every divorce in Pennsylvania have to go to court ? No. Many divorces are settled without court involvement. The attorneys can draft a Property Settlement Agreement. After it is signed, it acts as a contract between the parties, spelling out property rights and resolving other issues. Divorces that require the use of the courts often are much more expensive. When can I file for divorce in Pennsylvania ? You must have been a resident of Pennsylvania for at least six months (or your spouse must be present for at least six months) before you can file for divorce in Pennsylvania. How soon can I get divorced in Pennsylvania ? In an uncontested divorce, you can get divorced in as soon as 90 days from the time the Complaint is filed and served. This time can be longer, depending on the willingness of the other party to cooperate, return the signed papers, and complete any other related matters. It also depends upon how long other matters take, such as property division, custody of children, and support. If my spouse is served with my divorce complaint, does that mean I will be automatically divorced in 90 days ? No. Both parties must sign the final papers, and then the paperwork must be submitted to court to obtain the final decree. In addition, your lawyer will want all the issues of the divorce to be settled before you sign the final papers, so it may take longer than 90 days. The 90 days is a minimum. What are some grounds for a "fault" divorce ? Some grounds for the granting of a fault divorce are adultery, abuse, and abandonment. Can my spouse contest the divorce ? Usually the actual divorce is not contested, but sometimes the property division and related issues such as custody are contested. Will my spouse get half of everything I own ? Pennsylvania is an equitable distribution state. This means that the court may divide the property in a marriage as it sees is fair to both parties. Fifty percent is a starting point, but it may not be the ending point. Only marital property is divided this way. Marital property is that property which was acquired after marriage but before separation (or the increase in value during marriage for property obtained before marriage). If the parties don’t go to court, they and their lawyers must divide the property in a way that is fair to both, under the law. Can my spouse get part of my pension ? Yes. Pensions are assets that are divided during equitable distribution. A spouse may get the part of a pension that was acquired during the marriage. However, pensions fall under federal ERISA laws and cannot be transferred without a court order. Your lawyer may have to draft a Qualified Domestic Relations Order, or QDRO (pronounced "quadro"), that accomplishes division of a pension. Even if a pension is not divided, it is added into the list of property to be divided. The spouse without the pension may get other property with an equivalent value, for example. Can I be in the process of a divorce but still live in the same house as my spouse ? Yes. Generally, the date of separation refers to the date one spouse left the marital residence, but this isn’t the only way to separate. If economic circumstances do not permit one party to leave, the date of separation can be the date when the couple ceased living as man and wife. I’ve lived with my boyfriend/girlfriend for more than 7 years. Does that mean we’re automatically married under common law ? No. Although Pennsylvania does recognize common law marriage, a common misconception is that after 7 years you are automatically married. There are generally three elements to having a common law marriage: cohabitation, plus words of present intent to marry, plus holding out as husband and wife. Your lawyer can better explain this, because the matter can be quite complicated. Sometimes a couple can be common-law-married with only two of the elements, under very specific circumstances. Moreover, there is no such thing as common law divorce. If you are truly married under the common law and want to get a divorce, you will need a legal divorce. SUPPORT QUESTIONS When must a parent pay child support ? In Pennsylvania, both parents must contribute to the financial support of minor children. When parents separate, the court may order child support be paid to the person who has custody. Support continues until the children graduate from high school or turn 18, whichever happens last. Pennsylvania law does not allow court orders to support a child in college unless both parents agree. This is usually done in the Property Settlement Agreement. Where and how do I obtain child support if my child’s other parent won’t pay it to me voluntarily ? To receive child support through the Domestic Relations system, a parent must have a complaint filed and served. Parents (or other persons with whom the children are living) can have their lawyer do this, or may contact the County Domestic Relations Office directly. Within a few months of the filing and serving of a complaint, a conference will be held to determine what support is due. This will be entered as a court order, effective when the complaint is filed. Either party can appeal, but the support order will be enforced until the appeal hearing. How much support will I receive or have to pay ? The amount of support is usually determined by the Pennsylvania Support Guidelines, based on studies of the amount of money parents who are living under one roof spend on their children. To apply the guidelines, court officials will calculate the gross and net income of both parents. Your lawyer can also help you estimate what will be owed or received. For support purposes, gross income can include wages, overtime pay, bonuses, rental and retirement income, Social Security, workers’ compensation, unemployment compensation, and other income. Net income is determined by subtracting all income taxes, Social Security and Medicare payments, mandatory retirement contributions, and union dues from gross income. If you have no income but are able to work, the court will estimate what you could earn and apply the guidelines using that figure. The court may also order a parent to help with daycare costs, health insurance premiums, and mortgage payments. Can a support order be changed after it is entered ? If a significant change occurs in either party’s income, or if other circumstances change, the court may modify the amount of support. To request a change, you must file a petition to modify. In addition, parties under a support order are obligated to inform Domestic Relations if there has been a change in address or job. What happens if support is not paid ? Support orders are routinely paid by voluntary and involuntary wage attachments. If the support cannot be collected by attaching wages, the person may be jailed or fined after a contempt of court hearing. Also, he or she can face suspension of state-issued licenses, reports to credit bureaus, real estate liens, and interception of federal income tax refunds. Will the court require receipts or other proof showing that the support is being spent for the children ? No. Can I receive a credit against the support order if I buy my child shoes, gifts, etc. ? No. If I paid support directly since the complaint was filed but before we had the hearing, will I get credit for that ? Possibly - you must mention this at the hearing, and provide proof such as canceled checks. Bankruptcy information is in the process of being updated, due the new law that has gone into effect.