Estate Law Questions? Ask an Estate Lawyer.
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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?
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.
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.
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.
I understand.So I (or an attorney on my behalf) would have to prove that my brother's mental condition
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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?
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.