Estate Law Questions? Ask an Estate Lawyer.
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In order to make any valid wills, trusts, or Power of attorney documents, the person needs to be of sound mind, and be mentally capable of understanding what they are doing. Can you determine, based on your interaction with the attorney, whether she is trying to form a new trust (thereby revoking the old one) or simultaneously maintaining 2 separate trusts? Also, I'm unclear - are you current POA? And who is the current named trustee?
Her current lawyer-I don't know how she chose him except that he apparently has documented that she is "competent" to make decisions by herself. I am (apparently) a Trustee. I was a beneficiary of the original Family Trust-which was set up with the intention of protecting the estate from taxes. My father also intended that everything be available for my mother upon his passing. Originally the Family Trust specified that my Mother was to retain everything so that if she needed more money to cover special care or medical needs, she could sell anything to provide for such needs. My sister and I were named to receive 1/2 of the estate each upon her passing plus the money in the Trust Accounts established with
I'm sorry - when I checked back it appeared you were still typing. I don't think everything has posted. Can you review the post and make sure?
Also, if you feel that she is incompetent, this is easiest to prove while she is still living. Generally, this is proven by getting statements from caregivers, primary physicians, clergy members, social workers, etc; anyone that has an ongoing relation with her - and especially those trained in this field (elder health/law).
Some Trusts become in part irrevocable upon the passing of one spouse (so that 1/2 the property cannot be given to different heirs) - but generally that is an AB trust and is in the name of both spouses. That doesn't sound to be the situation here. However, it would be worthwhile to check on the initial trust (the one when your dad passed) to see if it was in fact an AB trust.
The trust accounts with Janney were set up with my parents as custodians-we each had a separate account
with our names. In the original revision of the Family Trust I was named POA. I have never done anything about activating it. How do I go about getting a copy? When I talked with the lawyer I was told that I would have to talk to my Mother to get a copy.
One avenue would be your mother. But since you are a close kin, generally close relatives or named beneficiaries can petition the court for a copy. The attorney would not have to give it to you without a court order. The POA takes effect upon incapacitation, so if you have evidence that your mom is mentally incapacitated, you could petition the court for a copy of the trust that includes the POA. Generally you don't activate it per se - you just provide a copy to whoever needs it (i.e. banks, etc). It sounds like the trust accounts may have been bank accounts - is that possible?
There is a cause of action called "undue influence" - when one person, in a position of trust, exercised undue influence and financially gains as a result of this. This involves a lawsuit - unless you think mediation is appropriate - which is a voluntary process for the participants.
No the accounts were specifically set up as Trust accounts with my parents as the Custodians and
Also, if you fear elder financial abuse (or even mental abuse), generally adult protective services will investigate.
my sister and I each had aaccounts in our names.
For the accounts - yes; but were they with a bank? If so, upon their passing it passes directly to the named beneficiary.
My mother has called adult protective services claiming that I was abusing her. she even called the police when she could not hear the telephone dial tone. she claimed I had shut off her phone. Ironically the phone she used to call was a cell phone I provided and paid for.
The accounts were with the investment firm Janney Montgomery Scott. They also have our IRAs and various investment accounts
That sounds like the situation is getting untenable. In situations such as this, generally a conseratorship/adult guardianship is considered. This involves a detailed (and costly) court process, but it safeguards the financial, mental and physical well being of the elderly, particularly if they are being taken advantage of. Have you looked into this option?
No. I do not have a bunch of money. I am living in the house with my Mother because she really cannot be left alone. Several years ago, right before my sister moved away, she fell in her bathroom and broke her ankle. She loves to walk in the garden, which has little flat area, I have had many paths installed, but according to our gardeners, she has fallen at least 4 times recently. If no one is here, I fear one of these falls will be fatal. In December she started telling me in notes that she wants me to move out. So I told her that I would happily move out (not true) if she finds someone to live in. And I want to interview the person and have the police run a background check. The police officer she called over the telephone incident said that they would be happy to do a background review of anyone coming in to care for her.
If the police investigation did not result in a disfavorable outcome for you (which I assume it didn't as it seems they are trying to work with you), you may want to contact a supervisor at adult protective services; sometimes these agencies get so overworked cases that need attention get ignored. Another alternative is to contact the local Area on Aging as they are familiar with many local resources. Let me see if I can find anything.
What county are you in?
Remember, this is a public forum so you may not want to release this information.
You can find your local county office for Area on Aging here: http://www.aging.ny.gov/NYSOFA/LocalOffices.cfm Depending on your locale, they provide quite a bit of assistance (i.e. meals delivered; transportation to doctor visits; legal services; home care, etc).
Another option, if you have the time, is to contact the larger elder law firms and see if they are interested in taking on this as a pro bono. Larger firms tend to be more involved in pro bono cases. It would take some leg work though.
We are in Rensselaer County. The Office on Aging sent someone over-they talked with my Mom and
she was offered rides to appointments-which I generally do-and free meals-which I also do. They refused to speak to me at all. I think what I need is a very inexpensive mediator who is not acquainted with either of us to listen to both sides and help us reach a solution. I do not want to send her to a retirement or nursing home. I had always planned to be here for her, so she could live in this house that she and my father had built as long as she wants to. I never planned to be 33% disabled and unable to work in the field I trained for (university teaching). She has recently taken a hatred to my husband for no apparent reason and delights in telling lies about him. He is very good natured and calm and has been caring for me every since the workplace accident which left me permanently disabled. He calmly ignores most of her taunts and lies. He has been my only source of emotional support since our neighbors appear to be way too ready to believe that my mother is some how being taken advantage of. I feel that we are surrounded by enablers who encourage her to fly off and do some really stupid things. All I really want is to be able to help her stay in her home without being required to divorce my husband. I fear that she will be able to have us moved out, then take a fall and die. At 95 she is one year older than her mother was when she died. Unfortunately her mother took a fall in her bathtub and was not discoverd for 2 days. After that she was taken to a nursing home and did not last much longer.
Oh my; no wonder your concern! Yes, ideally mediation would be best - because it could maintain (improve hopefully) family communication and find a workable solution. It would be nice to have a neutral party mediate. Some courts offer free mediation - let me see if I can find anything.
I appreciate your input. Unfortunately I have to go and finished making her dinner
since it is now after 6 and she is looking for her dinner. You have been very helpful
I hope that I will be able to work things out-right now this is killing me. I have chronic nerve damage
Go ahead and make dinner (and a well deserved rest after). I will try and find something. If I can't you can google it - but I'll try and see if I can find any subsidized programs.
and intractable pain. So when I start getting wound up by her actions it really hurts
Please let me know if you can recommend a mediator
I can't imagine - especially with what you are dealing with. ----We can't give specific recommendations - but I can direct you to community resources - so I will try and find something for you.
Here is a community mediation program - but review the facts. They may shy away because they state they won't get involved if a party's safety may be at risk (I would think that refers to domestic violence though, as opposed to elder care) http://mediationmatters.org/faq.cfm. You can view their site and their policy statement.
This agency looks rather promising. http://www.ccmnyc.org/index.php/programs.html - 8 locations and very diverse services. Very good luck on this. Also, if you and your family are religious, you can always go to the head of your religion and request counseling services - these are generally free to their members (maybe even a compassionate religious figure of your chosen religion would assist you even if you don't have a pre-existing relationship with them). I hope this gets resolved quickly for everyone's benefit. And of course, please don't forget to contact Area on Aging to see if they offer any legal services for the elderly (so your mom won't have to pay an attorney).
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