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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6516
Experience:  Wills, Trusts, Probate & other Estate Matters
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My mother is disabled with some dementia. My brother, who now

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My mother is disabled with some dementia. My brother, who now has mental health issues and a vendetta against me, is executor. Sister, who also dislikes me, is primary caregiver. My fiance had a prescription drug issue 2 years ago. Family found out. Big fallout. Executor brother refuses to attend family functions with me and my fiance; sister goes along with him. Mother has no problem with him or me but goes along with rest of family. Lots of antagonism against me by executor brother and sister for past 2 years; I stay away except to visit mother by myself. Executor brother attempted suicide 2 months ago; was hospitalized, released; now has been out of country for approximately a month, alone, without his wife. No one is talking about the attempted suicide. I learned from my sister that he's been on antidepressants for a few years and that he was drinking (against doctor orders) when the attempt took place. Mom has a lot of money and trust accounts were set up for all of us children at least 25 years ago, but executor brother has never disclosed any info regarding them. Last Thanksgiving, my sister fired caregivers and hired her friend to help with mother and told other siblings but not me. Executor brother and sister have control of mother's checking account and money. Questions: 1) Is executor brother competent to be executor? 2) Is my trust account and my share of mother's estate safe in his care, given his behavior toward me and his current mental state? 3) Can my brother and/or my sister spend my share of my mother's estate? 4) What should I do to know that my share is safe? Should I ask for an accounting or copies of bank/trust statements? Should I get an attorney to do it? 5) If I do that can my brother and sister retaliate? 6) If they retaliate, what can I do?

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

Can you please provide more specific information. How are the accounts set up: 1) just in your mother's name with your brother and/or sister as authorized signers; 2) only in your mother's name and they have access via power of attorney; 3) joint tenancy and if joint tenancy who are the joint owners; 4) does either your brother or sister have authority under a power of attorney document?

Customer:

Hi, thank you. 1) I believe the accounts are set up in my mother's name with my brother as an authorized signer. My sister has access to her checkbook since she stays with my mother in her condo 98 percent of the time, so she writes out the checks. I believe my mother signs them. But my brother is my mother's legal power of attorney so he also has power to sign. 2) I don't believe there is any joint tenancy. 3) Yes, again, my brother just became my mother's legal power of attorney.

TMcJD :

Okay. Thanks. What that all means is that neither you nor your siblings currently have any right to her property since you are not joint owners. She could spend all her money on her own care leaving you all with nothing. You wouldn't have any way to stop her. Your brother, as her agent, could spend that money for her benefit and so long as it was in her best interest, there also wouldn't be anything you could do. Now, if your brother was spending money NOT for her benefit and/or for his own best interest, then he would be breaching fiduciary duties owed to your mother (duties requiring that he act loyally and in her interest and not his own). IF he did breach those duties, your mother could sue him for breach of fiduciary duty. That is how she would protect her property and possibly have something left for you and your siblings when she passes away. You cannot sue your brother for breach of those duties. Only your mother could. However, if you went to court and obtained guardianship/conservatorship over her based on her inability to manage her own affairs, you could then sue your brother on her behalf. Similarly, if your sister is taking advantage of her by unduly influencing her or coercing her to sign checks for your sister's benefit, then your mother could sue her (or you could sue her on your mother's behalf if you obtained guardianship/conservatorship. In any of those situations, you would need an attorney to assist you.

TMcJD :

The botXXXXX XXXXXne, unfortunately, is that until your mother passes away (or you obtain guardianship or conservatorship over her during her life), you can't really do anything because all the rights lie with her since you and your siblings have no current ownership over her property.

Customer:

I understand.So I (or an attorney on my behalf) would have to prove that my brother's mental condition

TMcJD :

Please let me know if I can provide additional assistance. If not, I would be grateful if you could please leave me a positive rating. I cannot receive credit for my work without your positive rating and that is the sole means of compensation for JustAnswer experts. Please keep in mind you are rating my professionalism and service, not whether the law is favorable (although I wish I could always say that it was).

Customer:

I'm sorry. I wasn't finished. Iunderstand all that you said. With regard to my brother's mental condition, I or an attorney on my behalf would have to prove that my his mental condition is such that he's incapable of managing her financial affairs and if he's doing something illegal regarding her money (such as conspiring with my sister to spend her money in an unethical or illegal way) I would have to prove that? And the way I prove that is how? I presume by asking to see how he or she are spending the money?

Customer:

Yes, I absolutely will give you a positive rating. I greatly appreciate your prompt and thorough response and if you could answer that one final question for me I would appreciate it. Thank you.

Yes, you would need financial records to prove that your brother was breaching his duties in any lawsuit against him for those actions.

The first step, though, if proving he is unfit to serve in your action where you try to obtain guardianship/conservatorship over your mother. In that action, his wrongdoing and his own mental condition would be relevant to proving his unfitness to serve.
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