[ptolomi]

Hello everybody,

I hope you all can help me. I'm a nursing home administrator in Texas. One of my residents was recently turned down by Medicaid because his bank statements showed he had, at one point in the near past, too much money in his bank account. When I researched the issue, I found out that his son, who he had given power of attorney to manage his, (my resident's), financial affairs had drained all of his 200K plus out of my resident's bank account and had used the money to build a house.

Now, I know the power of attorney really changes makes things difficult but does my resident have any legal standing on the house being built. So the question is, can my resident, because the son used his cash to build the house, attach his name to the deed of the property. Or, can my resident file a lien against the home and recover his missing cash?

This is very important to my resident. At this time, he doesn't have enough money to pay for his stay at the nursing home. This gentleman is 94 years old and he's stressing out because he doesn't have the means to even bury himself. His son has basically dumped him on our facility and as the Administrator I'm the only advocate he has.

I sure could use some honest help.

Thanks to all.

[puppetkicks]

It depends on what the power of attorney papers had specified. Now if it says that he only has power of attorney to take care of his fathers bills then he just broke the law. Giving you power to get money out of the bank to pay your fathers bills does not give you rites to take the money out for your own and you might want to check the paper to see if his is supposed to keep recietes of the money he spends to take care of his father. I would call an attorney as soon as possible.

[excon]

Hello pto:

He's been ripped off! Call the cops! What's your hesitation?

excon

[ScottGem]

I can understand your hesitation because you need proof. First, a power of attorney is an authorization to act on someone else's behalf in a legal or business matter. A POA can be limited to specific matters or it can be general. It does NOT allow someone to appropriate funds for any purpose other then the benefit of the grantor of the POA.

So, if the resident had funds in bank accounts and those funds have disappeared, the holder of the POA needs to provide an accounting. You just can't assume because the son is building a new home, that the funds were used for that.

What I would suggest is you contact a senior support group like the Grey Panthers. They usually have attorneys that work pro-bono to help. What I think needs to happen. Is for your resident to revoke the POA and demand an accounting of how the funds in the account were used. I don't believe the police can get involved yet because there is no direct evidence that a crime has been committed. However, it would hurt to contact the local police and see what they recommend. If you do contact the police, do NOT accuse the son specifically. Simply report that funds have gone missing and you aren't sure how.

[ptolomi]

To qualify for Medicaid we needed to provide the State of Texas with the resident's bank records. When we acquired the bank records we saw numerous, thousand dollar, transactions some of which were checks. We then ordered copies of the checks. When we received the checks we found that they had been written to a local home builder and to vendors who supply home builders with materials such as air conditioners. We then made an on-site visit of the son's property and saw that a new home was being built by the builder named on the cashed checks. All of this confirmed what the resident had been saying all along that his son had taken all of his money so that he, the son, could build a new house for his new wife.

So, there is proof of misappropriation. In fact, we had Adult Protective Services investigate and they determined that this case was an exploitation case.

My reason for asking the real estate question is my attempt to do something on the civil side of the law to assure that this 94 yearly old man will be able to be buried with his wife in Maryland. Right now, he doesn't have the means to do so.

Can this 94 year old man with proof that his son used his funds to build a new house attach his name to the deed or place a lien on the home?

[ScottGem]

Ok, You should have specified that about the investigation in the first place.

What I think has to happen here is that the old man needs to file suit against his son for the amount of money stolen. Once he does that and obtains a judgement, he should then be able to file a lien against the property.

The sad part though, is that such a suit will take time and I gather time is a precious commodity for your resident.

Given the proof of misappropriation (and it appears significant and concrete), I think the better course is to file a criminal complaint against the son. The cops will then arrest him. A criminal case should get a speedier trial or it might spur the son to make restitution. If (when?) the son is convicted, the judge could order the house be turned over to the father or sold and the father get restitution from the sale.

Of course, that action covers some heavy consequences. Are there granchildren? Would they be out of a home? How would they suffer if their father (the son) goes to jail?

I'm also wondering what Adult Protective Services said to do. Shouldn't they have filed charges on behalf of the old man?

[ptolomi]

Thanks Scott. I would have posted all the facts up front but I didn't want to take up the whole web page with the information.

No grandchildren will be out of a home. The son and his wife have no children living with them. Also, the son and wife are living in a home adjacent to the home being built. So if the new home is sold, they will still have a place to stay.

APS said they would turn over their investigation to the District Attorney about 3 weeks ago. We have yet to hear from the DA or APS. As you know, APS cases are piled up and caseworkers are in short supply. I suppose this case has been added to the DA's stack if you know what I mean. They haven't returned our phone calls either.

So your advice is to file a criminal complaint? Is this a valid procedure in Texas?

Thanks for your help.

[ScottGem]

I understand your desire to not overload with info. However, most of the time we wind up asking for more or making recommendations that change as more info is revealed. Yes, my recommendation is to file a criminal complaint, but I think that was done when APS turned the case over to the DA.

So, what you need to do now is sit on the DA. You need to explain that time is of the essence here (I don't know what the old man's condition is). Maybe threaten to go the press if immediate action isn't taken (the press will love a story like this). Can someone go down to the local DA's office and sit in their reception room until they see someone? Do you or anyone have a contact with the local police who can find out what the DA is doing?

As far as I can tell, from what you have told us, you and APS have done the right things. The next step would be to arrest the son and set a trial date. That has to be done by the DA. They have to swear out a warrant, send the police to arrest the son, arraign or indict him and set a trial date.

One thing you might do in the meantime, is get the home's attorney to videotape a deposition with the old man, where he testifies that he did not authorize the expenditures and believes his son has stolen from him. This way, the old man may not have to appear in court if he's too ill.

[excon]

So your advice is to file a criminal complaint? Is this a valid procedure in Texas?

Hello again, pto:

Actually, no. Whatever method it takes to get the information turned over to the police is all that's required. You calling the police, or the APS turning it over to the DA is the same thing, and it has already been done.

A criminal investigation is under way. You would get more cooperation from the DA if it had been you who made the complaint. They're probably not sure right now whether you're a victim, a friendly witness or maybe even a perpetrator. It's not surprising that they don't return the calls.

It doesn't matter how many cases APS has. They've turned it over to the cops. It DOES matter how many cases the DA has backed up.

Assuming that your DA is competent, the real bad guy should become apparent shortly, and the cops should stop him. Scott is right. Hopefully, they'll include the return of your client’s funds as part of the negotiation process. But they may not.

The above, assumes a lot. Your client’s interests and the DA's interests are NOT the same. Without GREASE, the case could languish on a back burner for months.

If that happens, your client will have to sue. I suggest that you hire an attorney for him ASAP. The attorney can supply the GREASE. Once a criminal conviction has been obtained based upon the same behavior, a civil conviction is assured. However, as noted, time isn't on your side.

excon

[ScottGem]

In a previous post you indicated the major concern was to "assure that this 94 yearly old man will be able to be buried with his wife in Maryland". There are some problems here however. I don't know who is paying for the nursing home, but if its from public assistance, they will have first claim on any funds recovered. So its possible there will be little left over.

This also makes it more difficult to get an attorney to "grease" the wheels. I'm not sure, even if the attorney takes the case on contingency, that they can take their fee before the public agency does. This woul inhibit the ability to get an attorney. Even if they can take their fee up front, this further reduces the amount left for burial expenses. An attorney is likely to take 1/3 as a contingency fee.

So I go back to an earlier suggestions about getting a group like the Gray Panthers involved. They will likely have attorneys as volunteers or on retainer who can help. They may also have some people with some influence with the DAs office.

I do agree with excon, that you need to grease the wheels here.

[sparkymom]

Hello everybody,

I hope you all can help me. I'm a nursing home administrator in Texas. One of my residents was recently turned down by Medicaid because his bank statements showed he had, at one point in the near past, too much money in his bank account. When I researched the issue, I found out that his son, who he had given power of attorney to manage his, (my resident's), financial affairs had drained all of his 200K plus out of my resident's bank account and had used the money to build a house.

Now, I know the power of attorney really changes makes things difficult but does my resident have any legal standing on the house being built. So the question is, can my resident, because the son used his cash to build the house, attach his name to the deed of the property. Or, can my resident file a lien against the home and recover his missing cash?

This is very important to my resident. At this time, he doesn't have enough money to pay for his stay at the nursing home. This gentleman is 94 years old and he's stressing out because he doesn't have the means to even bury himself. His son has basically dumped him on our facility and as the Administrator I'm the only advocate he has.

I sure could use some honest help.

Thanks to all.

It is awful to think that a son would do that to his own parent but this stuff happens all the time. Bottom line, you can't get blood from a stone and the nursing home is not going to put the elderly man out on the street. If they do, well shame on them.

[RichardBondMan]

I cannot understand why a mere Power of Attorney exists ? If I had a 94 yr old father in a nursing home. I would petition the probate court for me to be appointed as both the guardian of my father and/or the conservator of his estate. Have you checked with the elderly man to see if anyone has been appointed his guardian or conservator. In most jurisdictions, the conservator of someone's estate is required to post a surety bond with the Probate Court to guarantee that if estate funds are used for any illegal purpose, then the bond will replace those funds. Of course, the surety company will go after the son but that's their issue with him. I would ask him just by chance does he know if someone has been appointed conservator of his estate and/or check with the local probate court.

[ScottGem]

I cannot understand why a mere Power of Attorney exists? ... I would petition the probate court for me to be appointed as both the guardian of my father and/or the conservator of his estate.

I'm sure YOU would. But then you have experience in this area. Its not uncommon for a parent to issue a POA when going into a nursing home or hospital, just to allow someone to be able to represent them if necessary. Since the estate seems to be around $200K that's not enough to warrant probate, since its under the estate tax threshold.