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GeorgetownLawyr
GeorgetownLawyr, Family Law Attorney
Category: Family Law
Satisfied Customers: 12028
Experience:  Experience: contested Divorces, custody disputes, Post dissolution modification, child support issues, adopti
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I am being investigated by APS. I have durable power of attorney

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I am being investigated by APS. I have durable power of attorney for my father and am also executor of his living trust. My husband,Myself and another younger sister have cared for my father since my mother past away in 2003 but had no control over his finances till Nov. 2010. In April 2013 we placed him in a facility with a private room with excellent care thus far due to his severe incontinence and our inability to deal with this issue as he gets violent when being cleaned or changed. My sister and I have been caring for and dealing with a variety of stressful situations with my father while his health deteriorated since my mothers passing with two sisters who when asked have never helped or offered to help in any way, shape or form. Since paying for his care in the facility I was unable to pay his mortgage and applied for a loan modification and after 5 months of being given the run around was told it was approved only to be denied two days later due to my fathers living trust being recorded on the deed of his home. I am actually paying the past due balance on his home tomorrow but in order to keep my fathers home we will have to let our home go since it is way under water and don't believe we will ever recoup any equity, move into his home and pay his mortgage. We cannot rent his home as rugs need to be replaced, walls re drywalled and electrical problems taken care of. I believe it is our two sisters who have made these charges against me since hearing of his home situation as they are only concerned with losing the equity in my fathers home and their percentage after he passes. I need to know if I can move into my fathers home, pay his mortgage, taxes etc. legally?

My father has never been abused in any way shape or form, his mortgage, bills, fines etc. have always been paid until he entered the facility and most of his finances go to pay for his room, board, medication, incontinence supplies and snacks. I have purchased items for myself throughout the years but with his knowledge and consent. I would like to know what the APS investigative process is and how long it typically takes. And if they can keep me from moving into my fathers home. My father is a very onery man who has a slight case of dementia now and the facility has threatened to oust him once already so he does need to have a home to return to in the case that were to happen. Please advise.
Submitted: 9 months ago.
Category: Family Law
Expert:  GeorgetownLawyr replied 9 months ago.

Hello and thank you for using our service. My name is XXXXX XXXXX X am a licensed attorney and will try my best to help you. I just ask for two things: 1) Before you sign off, please remember to rate me positively as that is the only way that I am paid and your question does not close after you rate me so I can still answer additional questions without additional charge if you have follow-ups even weeks or months later; and, 2) IF I have bad news for you, please remember I am only the messenger. When you rate me, it is my service to you that you rate, not whether the news is good or bad. I will try my best to give you a solution, but sometimes the law does not have a good one.

 

What kind of abuse are you being accused of?

Customer: replied 9 months ago.

When I spoke to the APS person in charge of this case he asked questions about his care, specifically about his fingernails and dementia and he also asked if there are any loans other then the first mortgage on the home of which there are no seconds or any other loans on my fathers home or in his name.

Expert:  GeorgetownLawyr replied 9 months ago.
Ok, thanks. What powers/rights does the DPOA give you with respect to his property?
Customer: replied 9 months ago.

It states: This document gives your agent the powere to manage, dispose of, sell, and convey your real and personal property, and to use your property as security if your agent borrows money on your behalf. This document does not give your agent the power to accept or receive any of your property, in trust or otherwise, as a gift, unless you specifically authrorize agent to accept or receive a gift.


 


This is what it states in regard to property.

Expert:  GeorgetownLawyr replied 9 months ago.

Ok, thanks. The process APS engages in to conduct an investigation is contained in California DSS Manual - APS Section 33-505 which describes the Initial Evaluation reads as follows:

 

1 Upon receiving a report of known or suspected abuse or neglect of an elder or dependent adult, each county adult protective services worker shall determine:

 

1. If the incident meets the definition of abuse or neglect of an elder or dependent adult; and

2 If the county adult protective services agency has jurisdiction to investigate the incident.

NOTE: Authority cited: Sections 10553 and 10554, Welfare and Institutions Code and Senate Bill 2199 (Chapter 946, Statutes of 1998), Section 14 uncodified. Reference: Sections 15610.07, 15610.57, and 15650(a), (b), and (d), Welfare and Institutions Code.

 

Section 33-510 sets out the response to reports:

 

If there is a report of an immediate life threat, imminent danger, or a crisis in an existing case, attempt to immediately make in-person contact with the elder or dependent adult for purposes of intake or intervention.

 

.111 Provide an immediate in-person response when the local law enforcement agency requests it.

 

.12 Respond to all other reports of danger of abuse or neglect as soon as necessary to protect the elder or dependent adult, but in no case shall the response be more than 10 calendar days from the initial report.

 

.13 Investigate all incidents of known or suspected abuse or neglect of an elder or dependent adult when a violation of the Penal Code has been alleged.

 

IF they find abuse, section 33-515 discusses what they need to do:

.1 Each adult protective services agency shall report by telephone or facsimile as soon as possible every known or suspected instance of abuse or neglect of an elder or dependent adult to:

 

.11 The law enforcement agency having jurisdiction over the case if it is suspected that any incident of criminal activity has occurred.

 

.12 Any public agency given responsibility for investigation pursuant to Section 33-405.

 

In addition, the abused person is provided with case management services which according to section 33-520 consists of :

 

Case management services shall be provided on behalf of elders and dependent adults who are determined to be in need of adult protective services.

.11 The purpose of case management is:

 

.111 To stabilize the client in his/her environment in order to minimize or alleviate the risk of abuse or neglect.

 

.112 To assist the clients to make changes that enhance their ability to protect themselves in the future.

 

.113 To enhance the client‟s problem-solving and coping capacities.

 

.114 To improve the client‟s protection and quality of life by linking them with resources and services.

 

As to the length of time, it appears they have to complete the assessment within 21 days according to section 33-525:

 

.1 When it has been determined, based on the adult protective services agency‟s investigation of the report of known or suspected abuse or neglect, that adult protective services are to be provided, the adult protective services worker shall complete a case assessment.

 

.2 The case assessment shall be completed as soon as appropriate for the elder or dependent adult, depending on the risk involved, but no later than 21 calendar days from the date of the initial in-person contact with the client.

 

.21 The purpose of the assessment is to identify:

 

.211 The client‟s capacity and ability to protect him/herself.

 

.212 The client‟s willingness to be involved in the problem-solving process.

 

.213 The client‟s need for protective intervention.

 

.214 Immediate and ongoing risk factors.

 

.215 Resources available to the client and/or his/her family that could alleviate the risk of abuse or neglect.

 

.3 If during the assessment process it is determined that the client does not need adult protective services, the reasons why services are not needed shall be documented in the file, and the case closed.

 

NOTE: Authority cited: Sections 10553 and 10554, Welfare and Institutions Code and Senate Bill 2199 (Chapter 946, Statutes of 1998), Section 14 uncodified. Reference: Sections 15763(a)(1) and (c), Welfare and Institutions Code.

 

No as to their ability to prevent you from moving into his house, if they determine you are abusing APS cannot prevent you but they can report law enforcement who may be able to prevent you from taking occupancy. As to the power given to you under the DPOA it appears you do not have the authority to move into his house or risk that being construed as a "gift." If you must move in, you should pay some sort of rent and the rent should go to your father's account and be used for his care so that you can avoid any appearance of you living in his house as a "gift" or abusing your authority/taking advantage of him. So botXXXXX XXXXXne until there is a finding of abuse you should be able to move in but pay rent to avoid what I just discussed. I hope this helps clarify.

 

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just make sure you type: FOR GEORGETOWN LAWYER on the subject line. Thank you!

 

Customer: replied 9 months ago.

I would be paying his mortgage, taxes etc. in order to keep the home in the case my father gets evicted for his violent tendencies. So who would notify law enforcement or who would have that right to stop us from moving in? We need to decide if it is worth risking leaving our home to keep my fathers home or I will not catch up on his mortgage and just allow the chips to fall where they may. My father has never been abused in anyway and do not understand how anyone who has had no part of his care and whose family hates my father can file a report and suddenly have rights in his life.

Expert:  GeorgetownLawyr replied 9 months ago.

At this point no one can call the police but I'm saying IF, that's IF, APS decides there is abuse then APS may notify whomever they want to including the police, Attorney general elder abuse division etc. They have the right to get involved because they are a government agency and you live in the United States of America so they have the authority because someone filed a complaint with them. They did not just come into this on their own. They have no way of knowing if the complaint is valid unless they investigate. There is legitimate abuse going on but they cannot just dismiss a case without investigating.

 

If you are going to pay the mortgage, taxes, etc. I would still write the check to your father in the form of Rent payments and then from his account pay the mortgage, taxes, etc. Only you can decide if this is worth the risk and I believe it is a small risk that anything will come out of this but in the abundance of caution I would recommend you also consult a local attorney to discuss the issues, since this is a big step for your family. I hope this helps clarify. Thanks in advance for a positive rating so that I may receive credit for my time and kindest regards.

GeorgetownLawyr, Family Law Attorney
Category: Family Law
Satisfied Customers: 12028
Experience: Experience: contested Divorces, custody disputes, Post dissolution modification, child support issues, adopti
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