My sibling and I have always shared POA responsibility for mom, both financial and health care. Mom lived with me for almost two years, and now she has been with my sibling for almost one year. My sibling informed me she is creating a trust for mom’s estate (with attorney who is personal friend) and I’m to be eliminated as POA. It will be solely my sibling as POA for the trust. When I pushed back and said that I was very hurt and upset, she got extremely angry with me. Mom is really unable to make any decisions at this point and she has not asked for the trust to be created, it’s all my sibling. Mom will do anything she is asked to do and sign anything. To me, this is borderline financial elder abuse. Can you please offer advice to me? Thank You
From my own persona knowledge and experience, one PoA cannot remove another PoA without the principle (in this case, your mom) being competent and driving the decision. "Competent" is a sticky term, because a person can have a fair amount of memory loss and still be assessed as competent. It is about comprehension and not retention.
If the family friend attorney is knowingly helping to create a trust for someone who has a medical diagnosis of dementia they could be dis-barred. This is why you need your own attorney, if your understanding of the situation is accurate. And, one individual (your sister) cannot create a trust for someone else (your mom) with her assets and resources. My husband and I have a trust and it can be complicated. If we don't have medical diagnosis of incapacity, then the attorney can do their own assessment for comprehension.
Do you know for a fact that your mother has a medical diagnosis of dementia? If she doesn't but her cognition is as bad as you say, then hire an attorney.
I would consult an Elder Care Attorney. Possibly the attorney that was seen for the first documents. Or get another.
I am sure there will be a couple other members that will respond with much more detailed responses.
Because it is unclear what is going on here, I would hesitate to give any advice other than to see an attorney now for yourself, to comb out how things ARE NOW, and how they might change.
It is unusual, whether POA or Trustee, to have TWO Serving equally at once. Usually it is one serving, and the other the "second" in case needed.
You need an attorney to iron out what is happening now, and what powers the sibling has. Take all current documents with you.
Mom cannot sign Trust documents if she is incompetent. A competent attorney creating a Trust for her will want to see and examine her verbally.
If she is competent she can sign anything she wishes to, whether another suggests it or not.
See an attorney.
I would file a complaint with the BAR association against this attorney. They need to be stopped from exploiting a vulnerable senior in the name of friendship.
I would schedule some free consultations with attorneys and find out how to protect your mom. Start with a CELA and ask them if this is in their realm of practice, if not, ask for referrals and what type of attorney you need.
Your sister CAN NOT remove you from POA. Only you or mom can change that fact.
This is sad, to have families torn apart by stuff like this--yet it goes on all the time. It seems that talking to mom is out of the question--right?
You best arm yourself with a lawyer.
A person cannot take POA away from someone and they can't make themselves POA. Only the 'intended' party. And if she's not able to make decisions--your sister's attorney is complicit in fraud. Perhaps they don't KNOW that mom isn't able to make her own decisions.
We DO have 2 poa's serving together. One YB is Medical and the other is financial. They work together, I guess. (I'm just a girl and you know how stupid we girls are.)
As others have said, get your own attorney, and if you can find out who your sister is using, you can contact him to let him know your mother has been diagnosed with cognitive impairment and is not competent to make legal decisions. He can sit with that and decide if his law license is worth the fee he'll get for setting up a trust that isn't valid.
That said, neither a PoA nor a will/trust can be altered after a person is mentally incompetent to legally sign it. As has been said by others, an attorney who is doing this work is in violation of their law license.
That said, I have to wonder if the writer really understands the terminology and legality. It may be that "POA" was used as a term between siblings without any signed document. It may also be that the mother is now incompetent and needs a conservatorship. THAT would be a legal area in which the sibling's attorney can work.
Step 1: ensure you know the language and law.
Step 2: pull out the legal paperwork that your mom has signed, and the medical diagnoses your mom has which indicates her mental competence.
Step 3 and 4: Contact your siblings attorney to notify them of your documentation and give them your attorney's name and contact information.
Step 5: draft your extemporaneous notes and have no further contact with your sibling on this topic.
He called the attorney, told them what he wanted done & drove my mom to the lawyer’s office. Twice my mom with cognitive impairment wouldn’t sign but sibling kept harassing her until months later when she was released from the hospital she signed it.
The lawyer stated that she knew her name, date of birth, etc……..no competency tests were given.
Don’t wait…….hire a lawyer immediately! Best of luck to you.
He may tell sis to leave poa as is. You could also ask atty, in the letter, that you would like him to explain to you why a trust is being set up and how it will be used.
Also, for the time being, you ARE a POA. Do you know an elder atty that you could consult with? Maybe he could write the letter for you and get a little transparency on the whole matter.
2. I also will assume that you and your sister are co-POA agents for durable medical and financial powers of attorney.
3. You indicate that your mother is no longer competent to manage her financial affairs. Therefore, your sister will most likely have to take you to court to prove that you are not fit to serve as her co-POA agent as your mother is no longer able to.
4. If you and your sister are co-agents, state law and/or the POA document usually dictate how to resolve disagreements between you.
5. You should look at the POA document, which describes the powers granted to you and your sister. Often, the POA document must expressly state that the agents have the power to create a trust. Absent that, the POA might not have that power.
6. There is no such thing as a POA for a trust. There must be a trustee. A POA agent does not automatically take on the role of trustee. And your sister may be able to create a trust, but the trust must be in your mother's best interests.
7. You should have access to the terms of the trust your sister is setting up. If you think that the trust is not in your mother's best interests, you will have to engage an attorney. A letter written by an attorney to your sister stating the law in your mother's state may have an effect on her.
Suggestions, not legal advice.
Your first step should be to enable a constructive atmosphere for your sister to explain to you why she is doing what she’s doing. If your mother has substantial resources, this might be a good idea for both of you. Creating a Trust does not mean that she is necessarily going to be the sole beneficiary upon your mothers demise.
Try to work with your sister and see what you can come up with. In the meantime, hire an elder attorney you can consult with but don’t get into a big expensive legal proceeding unless it’s obvious that you must do so because your sister is not acting in good faith.
A meeting with the attorney so you can all get on the same page is where I would start before feeling or expressing suspicion. It may just as easily be that what is happening is in your mothers best interest and simply not being explained well to you or understood well enough by you or your sister. If after this meeting you are still feeling uneasy about it all then I would make the move to consult another knowledgeable attorney, we are trained to simply trust our own attorney, that every attorney is working with the same knowledge and view but getting a second opinion from an attorney is the same as getting a second opinion from a doctor. You and your sister have worked together to this point so please be careful about letting misunderstanding or I’ll advised legalities change that and estrange you at all, you will be needing each other more in the days and years to come. This looks nefarious on the surface if your life experiences have taught you to see things that way but it can just as easily look an be totally innocent, keep your guard up for both and get your facts before taking action you can’t take back.
There are good reasons to set up a trust to protect your Mom's assets, so it's understandable your sister would want to do so. If your mother didn't have a durable POA, it's crucial to have one now. That makes sense. So the missing link is why is she eliminating you? Who would be the back-up if your sister could not act? Are you named in the Trust? Get that attorney's contact info. You should be present at the signing. Get to the bottom of it, calmly and without emotion - it's your right as a daughter and as current POA. Try to resolve this with your sister before she takes any further action.
No, but the principal, your mom, can (be persuaded).
Three lawyers may deem a person competent to sign a document while 3 others wouldn't.
Is your mom on dementia meds? Call her physician’s office and ask to get a copy of her diagnosis with a statement that your mom has not been mentally competent since_Date_. My husband’s neurologist told me he’d give me a statement saying that he is incompetent, maybe you mom’s doctor will too.
Does your sister have any emails from you that may show your incompetence, ability to manage finances, or willingness to care for mom having nothing to do with your mental state and that may be used against you? Does your sister have emailed statements made innocently by you and simply between trusting sisters that mom is killing you and that you are, (understandably), on the brink, or you hate getting her taxes done, or that you let mom stay all day with soup poured down her dress for any reason. I’m just indicating that if you sibling is playing dirty pool, think.
Is you sister doing a good job caring for your mom? What exactly did your sister state in her response to you when you said that your feelings were hurt? Were those statements valid, feelings be danged? Btw, from now on jettison feelings. No time to be a girl. This is business.
Do you really want the responsibility to care for mom. Are you just hurt? Is there a lot of money involved? Is it the principle of the matter that has you in a knot?
My brother took my (demented) father to a lawyer, had a 20 year old will updated. He also replaced our very kind, and just, older sister as POA. Brother even convinced our father, (and lawyer was accommodating), to included his wife in the will. All this almost a year before my father died. Dad fell apart after mom died 3 years before. Brother syphoned money from father’s bank account and put his name on the safety deposit box. After dad died what was left, the sale of the co-op, was divided three ways.
Be happy that you were forewarned. She could’ve done this without telling you.
Lawyers police their own profession and it is very rare for any to be disbarred or even to have a complaint be acted upon. Don’t rely on that happening if the attorney your sister engaged is acting unethically.
This lesson-learned is from my own extremely painful experience. Then, after writing your own personal notes, I suggest following up the phone conversation with an email to the person summarizing what the conversation was. BCC yourself and file it in your email folder as proof of date and time and conversation subject. Otherwise, it can be a "he said, she said" claim by the other person, like "I never said that..." and deny everything. Even to your sister. However, discuss this with your new attorney and follow his/her advice, or ask advice about documenting.
In the previous state I lived in it was perfectly legal to record phone conversations. I never did that in the sense that I had an apparatus attached to the phone, but I did put the phone call on speaker phone and had my husband silently listen. Ask your attorney before doing any recording because each state has its own laws about that.
Regardless whatever your sister is trying to do (and her "friend the attorney") there are laws that govern these things but it takes someone to enact the laws, and that person is you and your elder law attorney that you are going to hire asap. Hang in there, be firm, be clear, stand strong. You can do this because you can do this for your mom. Peace.
See if you can text sister and get her to say that again.
Your sister would be what is called the grantor and your mother would be the sole beneficiary. Your sister can then transfer your mother's assets into the trust with herself or another reliable person as trustee. As financial POA agent and trustee, your sister has a legal fiduciary to act only in your mother's best interests. As trustee, she also has additional duties such as following the prudent investment rule.
A trust must have a purpose and any purpose it has must be in your mother's best interests. For instance, the trust would distribute assets for your mother's benefit during her lifetime. It also must be the best instrument to manage her financial affairs.
Once she dies, the purpose of the trust ends and the trust would terminate. Of course, the POA document could allow for beneficiaries other than your mother but this must be expressly stated in the POA document created and signed while she was competent. I can see problems if assets remain after her death and the POA fails to address this eventuality.
In some states, trusts make sense, but in general most people do not need them. Taxes still need to be paid and creditors can still make claims. Trusts can be expensive to set up and administrate. And adding and removing assets require re-titling. Selling real estate out of a trust can be very complicated.
Alternatively, your sister is free to set up a trust naming your mother as beneficiary and transfer her own assets into the trust. She would still owe your mother as beneficiary the fiduciary duty of loyalty but she would be free to set her own terms and even include as many other beneficiaries as she likes.
One last thing. Rules vary by state, but usually co-POAs must agree on use of granted powers. In such a case, you would have to agree to your sister's attempt to create a trust funded with your mother's assets, and she could not do so if you disagree.
One more last thing, unless you have already, hire a trust and estate attorney.
Suggestions, not legal advice.
'My sibling and I have always shared POA responsibility for mom, both financial and health care."
It all depends on the legal authority and how and who is it granted to when these documents were written up.