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Dave Kennett
Dave Kennett, Lawyer
Category: Criminal Law
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Experience:  25 years experience practicing attorney
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I rescued my grandmother who was living on her own in an elderly

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I rescued my grandmother who was living on her own in an elderly building from Boston back in June, 2008. She was 92 years old in the beginning stages of Alzheimers. In August of 2009 she fell and broke her left hip. After coming in and out of the hospital she was placed in a Nursing home that I chose and later broke her right hip in May of 2011. I became her POA in March of 2011. My grandmother has nothing. Just a social security check of $1081.00 per month. I kept waiting for her to get better, and alway's in the back of my mind said, I will bring her home soon. Now the Nursing home is asking me bank statements from March 2011 through September 2011. They asked me where her SOCIAL SECURITY checks were going! I did not know I was suppose to turn them over to the nursing home and never got a letter advising anything of the sort from the facility or from anyone. My husband was laid off, and we were facing foreclosure on our home, so I used the SS funds to pay our mortgage, and assumed this would be ok since I took care of her for over a year before she broke her hip. I am afraid to give them the bank statements. They are asking for only six months. I am afraid of being prosecuted for exploitation of funds. Should I give them the bank statements and tell them the truth? Or should I just pull her out of the nursing home? What am I facing, or what can I tell the nursing home in good faith so they know I will pay back every cent without them reporting me to Adult Protective Services? I have a clear record. In the back of my mind I felt I was owed the money for taking care of her for a year but I know what I did was wrong. What can happen to me worst case scenario or what can I tell the nursing home to rectify the situation and take the gigantic lump out of my stomach. I am afraid they will report me and afraid of going to jail! I am 47 years old. They think I am faxing bank statements tomorrow and I am scared. We are talking probably $7000.00 for this year. Not last year? Help!
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Dave Kennett replied 3 years ago.

-Could you explain your situation a little more?
Is this request coming directly from the nursing home or some state agency?

Have you made any statements to anyone up to this point concerning what happened tot eh SS checks?

Customer: replied 3 years ago.

Sorry, no the Nursing Home is asking for the last six months bank statements. My grandmothers account has often been in the negative and of course some of my household bills and my mortgage have been paid. I just don't know what to say to them. They are asking me for statements for just that last six months I think to figure out where the money has been going. She has been in the facility almost two years and I never had a meeting. Never signed any paperwork and have NEVER paid a cent. I dont want to rock the boat because I am afraid they will dig up old bones from last year. So this year alone would be the last six months of SS checks they are looking for. I just dont want them to TURN ME IN TO a State agency. I truly never signed anything and never had a meeting with them since day one. During a verbal phone call on this past Friday, they asked me "where is the money going", I replied what money. They have also hired a new administrator who also called me this past Friday.

Expert:  Dave Kennett replied 3 years ago.

Dear JACUSTOMER - You obviously have a problem but every defense lawyer I know would tell you not to send the nursing home any bank statements. You are going to be reported regardless of whether you send the statements so I see no point in "cooperating" and providing them with all the information they need since it would be the state's burden to prove any case against you. If you send your statements you are giving them all they need on a silver platter. Don't think for a minute that the nursing home is going to make any deals for repayment. They will get their money from the state and the state will be after you so the more evidence you provide will just help them with their case. If you have never signed anything with the nursing home you have no contract with the nursing home and cannot be forced to send them any bank statements.

The best thing you can do is keep quiet and get a lawyer and if you can't afford a lawyer and you are charged with a crime then the court will appoint counsel. Under no circumstances should you talk to anyone about this situation, nursing home or police or the state or anyone except a lawyer.

I'm not trying to scare you but I have to be honest and tell you that this is likely to be a theft offense and a felony so the less amount of information you provide the better chance you will have later of getting a reasonable deal from a prosecutor. Talking to the authorities never, ever helps you and everything you say will hurt you. Every defense lawyer in America will tell you the same thing and once you talk it is too late to take it back. You should simply refuse to send anything to the nursing home. Any future SS checks should be paid to the nursing home and you should direct SS to do so but not comment on where the past checks were going.

Customer: replied 3 years ago.
Do you think they will report me for the last six months? That is all they are looking for and I never signed anything?
Expert:  Dave Kennett replied 3 years ago.
They will simply report that you kept the SS checks and let the state deal with it. This is Social Security fraud and once the state gets the information they will investigate. You should not talk to anyone from the state and simply say that you do not want to talk unless you are represented by counsel. Do not believe anyone who tells you they "will go easy" on you or make you a deal etc. It just won't happen and they use these techniques to obtain information and make their jobs a lot easier. Whatever evidence you provide will just be something they don't have to prove themselves.
Customer: replied 3 years ago.
Her account is located in Massachusetts. She now resides in Florida. Are you saying the reason they are asking for the bank statements is because they plan on prosecuting? If I can hold them off until January I will have access to my own money or at least 10 thousand. Or do you think they are going to report me regardless? What if I put the money back into her account by January 2011?
Expert:  Dave Kennett replied 3 years ago.
I can't predict what someone else will do. Whether you put the money back in or not you have likely committed a crime. It's like saying you can rob a bank and then take the money back and not be charged. So putting them off may work and if they get their money they may not take this further but if you send the statements I can virtually guarantee you that this will be reported to the authorities. I know you are trying to undo what has happened but the problem is that it has already happened and the nursing home by law has a duty to report suspected Social Security fraud so no matter what you do this is likely to be reported. I'm just trying to give you information that will protect you as much as possible if you are ever charged with a crime. Even if you came up with the money today it doesn't mean the nursing home will not report the situation.
Customer: replied 3 years ago.
Well this is my last question I promise. There is an entirely new administrator who has come aboard just last month. They have to recertify the patients annually. I received a paper that was asking me for just the normal birth certificate & her red white and blue Medicare card. I spoke to one of the ladies I know & asked her initially if she needed bank statements and last month she said "no" just what is on the form letter. Medicaid has been paying all along. All last year I never received any telephone calls. I have the form letter in front of me which was not asking me for bank statements dated 8/12/11. I think they just stumbled upon it while re-registering my grandmother for Medicaid. Now they are asking me for the front and back of the "social security award letter" and the bank statements. They then asked me if she has a life insurance policy and I replied "no" verbally because I was nervous. The life insurance policy is for a "straight life policy" for $3000.00 upon her death which I was going to use for her cremation down the road. That is still there. I thought they were just going to use this to recertify her for Medicaid. Can I still request the direct deposit forms to have the SS checks deposited to the facility? Can I just pull her out of the facility??
Expert:  Dave Kennett replied 3 years ago.
Yes you can pull he out. I am not permitted to actually represent clients from this website and tell you specifically which forms to fill out etc. Obviously this is, or at least can be, a very serious situation and I can only go so far in telling you what to do or not do. this is why I said you need legal counsel. Her Social Security checks should have been going directly to the nursing home from the time she was admitted to supplement the Medicaid payments. I suspect that Medicaid will want a complete audit of her SS funds at some point whether you fill out the forms or not. What I am telling you is that must stop using the S money for anything than for you grandmother's care, whether she is in the facility or not.
Customer: replied 3 years ago.

I am just trying to do what is best for me and her at this point. If they are going to report me and I pull her out will this make it worse? If I just keep her there do I just ignore the phone calls. Do I send them what they were initially looking for (the copy of her birth certificate and the medicare card) and then what ignore their phone calls and hire an attorney?

Expert:  Dave Kennett replied 3 years ago.
Of course you can send the birth certificate and Medicare card. You can simply refuse to send the bank statements and force them to get a court order. As I said, you have a problem and I have no way of telling you how to make it go away. All I can do is try to protect your legal rights against self incrimination and that means not talking to or providing incriminating information to the authorities.
Customer: replied 3 years ago.

Ok and I am sorry for being a pest. In your OPINION only for a person who has never been charged with anything pertaining to theft EVER under the circumstances do you think I would just get probation or can they put me in actual jail?

Expert:  Dave Kennett replied 3 years ago.

In my opinion, and under the circumstances, I would guess that you would receive probation. This is why I don't want to see you provide any more information than necessary and why you need to get a lawyer if you are ever charged with a crime. The more information they have the more you will be charged with and give your attorney less to bargain with. In the end you want to be able to plead to the least amount of charges and that in turn will result in a better chance of getting probation.

BTW - you are not a pest as that is why I am here. I know you are under a lot of stress with all of this but you have to keep a level head and work through it with the least amount of damage.

Customer: replied 3 years ago.
Can you see the tears streaming down my face as I write back to you. I truly am a good person and would never have used her funds if I my house was not subject to forclosure at the time. Shoulda, woulda, coulda. I should have known better but it soooo pulled me out of so many financial hardships! So do you think it's in my best interest to pull her out of the current facility since it's medicaid recertification time and send them nothing? What can I expect if they do report it? Does a police officer come to my door and arrest me or will I get something in the mail. (Hopefully it will be just a bill) but wishfull thinking I guess. If I never signed any paperwork admitting her to the facility in the first place, can't I just take her out?
Expert:  Dave Kennett replied 3 years ago.

Please believe me when I say that I'm not here to judge you. I completely understand what happened. Yes you can pull her out as that is your prerogative at anytime but it will not make the problem go away. I'm quite certain that this has already been reported to Medicaid or at least will be regardless of what you do from now on. The usual way of handling this is that someone would contact you from Medicaid, not the police and until they have evidence to charge you with something there would be no indictment. What they want is for you to tell them what you have told me and then they will file the charges. I can't promise the police will not show up but generally, if charges are filed they would either call you in or send you something by certified mail to appear. If and when that happens you need to appear but DO NOT make any statements and simply tell them you want an attorney. I can't stress that enough.

Dave Kennett, Lawyer
Category: Criminal Law
Satisfied Customers: 27687
Experience: 25 years experience practicing attorney
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