Dear Mr. Premack: My mother lives with my first sister and her husband. I had Power of Attorney in all mother’s finances and a third sister and I have joint owner accounts with mother at her bank. I paid all mother’s bills and took care of all her finances. She had accounts that held money from the sale of her house. My first sister and her husband were using mother’s money, and spent most of it, so my third sister and I closed the accounts. We asked mother what she wanted to do with the small amount of money left. Following her instructions we got a cashier’s check from the checking account and gave it to our first sister, along with mother’s bills to be paid. The savings had a small amount left from the house sale, and it was put in another bank account under my name to be used for burial expenses and anything else mother needs. My first sister and her husband have not paid any of mother’s bills for months and now they want the savings money. AT SOME POINT They took mother to an attorney and had my power of attorney revoked and are talking about suing me for the savings money. What power do I have to protect this money instead of turning it over to them? – SL
You are in a classic nightmare scenario: the children are fighting over money, funds are short, and the tribal elder is unable to control the combatants. While you may see this as your problem to fix, it is legally your mother’s problem, and can only be fixed by authority that is legally lodged in your mother.
She could fix it personally if she was capable. She probably was capable for many years, and may have kept her three daughters under control with an iron fist in a velvet glove. But look at her behavior now: she allowed daughter #1 and her husband to nearly empty her bank accounts without making them accountable for the money. She had you (daughter #2) paying her bills because she could not do that on her own. She told you and daughter #3 to move her remaining money, but then not only failed to explain the new regime to daughter #1, she allowed daughter #1 to bulldoze her into signing a new power of attorney that allows daughter #1 control over the entire situation.
One possible solution: your mother could take a stand and hold firm, telling all of her daughters how to behave. The money belongs to your mother. The power belongs to your mother. If she is capable of reasserting her own authority then she can clean up this family battleground. If she lacks capacity to impose control over herself and her money, it could unfold that the family battle might roll on until relationships are broken and the money is all squandered.
Daughter #1 and her husband (who now threaten to sue you) might be reined-in when they discover the way they have handled your mother’s money could be a violation of various criminal laws. If they spent it on themselves without regard to her wishes, or if they did not have clear legal authority to use the funds as they did, it is possible they could be charged with theft. Any theft from an elderly person is legally punishable at a higher level than theft from someone younger. If they don’t want to be exposed to those possible punishments, including jail time, they may be deterred from further misdeeds.
One sure-fire legal cure: you would start a guardianship over your mother and let a judge decide who should take control. The judge will select an applicant who is best suited for the selfless care of your mother. The newly appointed guardian will account publicly to the court for all funds, all income and all expenditures. The guardian will even have authority to file suit to reclaim funds your mother transferred during her period of incapacity. Ongoing court supervision and the requirement that the guardian be bonded would put an end to this abuse of your mother.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, March 11, 2011