Keeping Your Housing Benefits Safe  

By Barbara Mountjoy, Staff Attorney, Northwestern Legal Services, Franklin Office

For Mary, family is the most important thing in her life. She would never deny her brother, her son or her closest friends any help she could give, including letting them stay for a few days if they were homeless or allowing them to receive mail at her house until they could find a place to stay. She never had any trouble – until she got a letter telling her she was being evicted from her Public Housing unit because her adult son was arrested for selling drugs. He hadn’t even been living with her when he was arrested. When he got out of jail, the police wouldn’t release him unless he gave an address where he could receive court notices. He gave Mary’s.
   HUD regulations allow Public Housing Authorities to end assistance to families under the Certificate and Voucher programs if any family member has engaged in drug-related or violent criminal behavior. [24 C.F.R. Sect. 982.553 (1996)]. Amendments have given the Authorities the right to end subsidies or evict tenants if the drug-related activities take place either on or off the premises. [42 USCA Sect. 1437d(I)(5)].
   The agencies are very thorough at tracking down names and addresses in the newspaper police reports, court records and more, and they are not inclined to make exceptions or listen to excuses. If you have let someone stay with you who is picked up for drugs, they can evict you from your housing unit or terminate your Section 8 subsidies, even if they did not get arrested at your apartment or if they have not made a permanent residence there. Not only can you lose benefits at your current living situation, but you can be prohibited from receiving further subsidies in the future.
   However, courts have held that tenants cannot be punished with loss of subsidies or eviction if they did not consent to the illegal activity or had no way of knowing it was going to happen (Georgia); if they did not have direct knowledge of the illegal activity (Illinois); or for the mere existence of another relative arrested for drug dealing who did not live there (Florida). Pennsylvania cases also exist which hold that tenants with no knowledge of or responsibility for the illegal acts cannot be evicted.
   If you are in public housing or you have Section 8 subsidy and you are being evicted for the drug-related criminal activity of ANOTHER person, call Northwestern Legal Services at 452-6957 or 1-800-665-6957 for a determination of eligibility for free legal help.

Erie County SHOUT Outreach Program 
Takes to the Streets 

SHOUT  Outreach workers will take to the streets in high risk communities where they can target at-risk youth between the ages of 14-25, including drug users and those having unprotected sex. Their goal is to prevent and reduce the spread of HIV/AIDS in Erie County through risk-reduction education classes and prevention programs.
   Through grass-roots street outreach, SHOUT Outreach workers distribute free personal care items and give confidential HIV counseling and testing. Funded by the Pennsylvania Prevention Project, Northwest Pennsylvania Rural Aids Alliance, and Bureau of Drug and Alcohol Prevention, the project aims to reduce or eliminate barriers to behavioral change among its target audiences and work to change their environment.
   Substance abuse and HIV/AIDS professionals provide free and confidential counseling and testing by appointment at the following locations: Erie County Department of Health (814 -451-6700; 800-352-0026; and 814-663-3891 - Corry Office); Multicultural Health Education Delivery System (MHEDS) (814-453-6229); St. Paul’s Neighborhood Free Clinic (814-451-6716); and Hispanic American Council (814-455-0212). Gaudenzia/Crossroads (814- 459-4775) provides on-site and off-site testing by appointment.

Incapacity:  Guardianship v. Power of Attorney 

By John P. Gagliotti, Staff Attorney, Northwestern Legal Services, Meadville Office 

The goal of Guardianship or Power of Attorney is to have a substitute decision maker appointed by the Court (in the case of a Guardianship) or pre-appointed by the incapacitated person him/herself while he/she still retains capacity (in the case of a Power of Attorney).
   A Power of Attorney may be a “general power” giving the appointed person broad powers to act on behalf of the incapacitated person, or may be limited in time and scope. For instance, if parents are placing their children in the care of the grandparents for a limited time while they are on vacation, a “limited” power of attorney can be executed so that the grandparents can act for the grandchildren until the parents return; or they can be limited to act for the persons only in certain areas. The person in whom the power of attorney is given is called an “attorney-in-fact,” the person giving the power is called the “maker.” The power of attorney can be over the “person” (i.e., the care of the person, such as his/her care or medical treatment) or it can be over the “estate” of the person (i.e., the income and assets of the person, in order to protect the property and/or pay the expenses). The maker of the power of attorney, so long as he/she is still competent, may revoke that power at any time. Once incapacitated, however, the ability to revoke the power is gone.
   If a person has become incapacitated and has not set up a power of attorney beforehand, or the attorney-in-fact is acting in a manner not in the best interest of the incapacitated person, then interested parties (most often, relatives) may petition the court for Guardianship of the incapacitated person. In guardianship proceedings, a person can be declared totally or partially incapacitated. There is a preference in the statute governing guardianship for a limited guardianship. Only that power which is absolutely necessary shall be transferred to the guardian, given the circumstances of the physical or mental health of the intended ward of the court. The court rules on whether the person is incapacitated, whether it is a long or short-term disability, and how much power the guardian will have. Medical evidence must be produced and the alleged incompetent must be present in court unless it can be shown that it would be harmful to himself or others to produce him in court.
   Procedurally, an emergency petition is brought before the court and if the evidence warrants an emergency order, the court will grant it. The petition and emergency order must be served on the alleged incompetent 20 days before the hearing is held. The alleged incompetent has the right to counsel. That order is generally limited in scope and in time. A hearing must be held for the full powers sought by the petitioner. The petitioner and proposed guardian are most often the same person, but need not be. If control, including the buying and selling, of real estate is to be a power sought by the guardian, then it must be specifically mentioned in the petition. The burden of proof to adjudicate one as incompetent is on the proposed guardian by “clear and convincing evidence”. If the guardian is seeking control of the assets or income of the person as well, then an estimate must be given of the alleged incapacitated person’s worth and a bond must be posted. The proposed guardian must be present in court and must testify as to his understanding of the alleged incapacitated person’s problems and an understanding of the duties he/she is to undertake.
   Once the person is no longer incapacitated, either by getting well enough to act on his/her own or by his/her death, then the guardianship is to be terminated.

IMPORTANT: ® Report landlords who use lockouts and utility shutoffs to the Bureau of Consumer Protection (814-871-4371) for enforcement action. Landlords will then have to enter into an Assurance of Voluntary Compliance and may be fined. . . .*The Department of Public Welfare has extended the deadline for submitting applications for the LIHEAP Cash Grant to March 6, 2002.