Is this battle sibling rivalry or parental choice?

Dear Mr. Premack: My mother is 91 and lives about five hours from here. My sister has durable power of attorney and I am backup agent. My brother lives with her and is draining her of all her money. Can he legally get my mother to go and change him to have power of attorney? – NF

Your brother may be financially exploiting your mother. I say “may be” because you are not an objective third party observer. It may be that your mother, though 91, is competent, capable and clever. She may love having her son in the house, may find that it is a great deal to help support him while he watches out for her. Or he might be illegally abusing and exploiting her.

The best way to handle this situation is to make a report to Adult Protective Services. They are part of the Texas Department of Family and Protective Services. A report to them is confidential, and will be acted on promptly. You can file a report online at www.txabusehotline.org or by phone at 800-252-5400.

As to the power of attorney, your mother is the decision-maker. When you ask “can he legally get my mother to go and change” the power of attorney, the legal answer is “no”. Only your mother has legal authority to create or to change her power of attorney, and she must do so voluntarily. However, if he is exploiting her, he may be able to pressure and influence her into something she would not otherwise do.

You need to maintain close ties with your mother. You need to see her, face-to-face, on a regular basis. You need to inform her lawyer of your brother’s possibly nefarious activities so he is on the alert for undue influence. You need to honor the choices that she makes if she is doing so voluntarily and with full capacity. But if she is being exploited, is unable to make decisions on her own, and has lost capacity to manage her finances or personal choices, you may have to seek to become her court appointed guardian in order to save her from your brother’s abuse.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, October 7, 2011

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