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
Dad died last September and Mom and I got a lawyer to create documents to ensure her estate did not go into probate.
The Trust agreement ensures that I can make sure the terms of the Will are carried out in a timely fashion. I do not have access to funds etc. I will be able to ensure the assets are distributed according to the will.
If Mom was not cognitively impaired she has the right to change her POA. If she was impaired then that is very shady on sisters part and the lawyer
Is that legal?
It all depends on whether your mother really isn’t able to decide for herself. (For example, it might be your opinion that your mother isn’t able to; but it might be the law’s opinion that she can). Only a court can decide that someone is mentally incompetent.
Often, the standard to allow an elderly person to sign documents is quite low:
…They just need to be able to know their name, address, birthdate, etc.
…They need to understand what they’re signing.
…(The fact that one has memory problems can be OK).
On the other hand, if your mother was wrongly pressured/influenced by your sister to sign, then that can be elder abuse.
I am not a legal expert, but I question how your sister can make a trust for your mother's estate naming your sister as POA, which would require your mother signing the trust. So, once again, if mother not capable of signing, I am not sure how your sister could do this.
Also, when you say you and your sister share POA responsibilities for your mother, does that mean you were both legally named POA for mother via a POA legal document or are you both just acting in such capacity?
You may need to hire your own attorney or certainly contact the attorney/'friend' who your sister/s are working with to re-write it.
It sounds to me that you DO NOT have the legal authority you believe you have.
While I appreciate you coming here for a response, I wonder why you didn't immediately call an attorney or the attorney your sister(s) are working with first to clarify what is going on and your rights as a POA (and how these legal responsibilities are split up among the family)
Do you realize this is a legal issue that you need to address? It sounds to me that you do not have the legal authority to make the decisions you presumed you had, otherwise your sister(s) could not do this without your consent. Gena.
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.
See if you can text sister and get her to say that again.
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.
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.
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.
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.
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.
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.
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.
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.
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.