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LegalGems
LegalGems, Attorney
Category: Estate Law
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Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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This is regarding 4 sisters in California. The two oldest

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This is regarding 4 sisters in California. The two oldest sisters have been the care givers for several years, the two younger have not helped in anyway and when asked refused. The mother of the sisters has dementia and now is in her final stages. Father passed away in September and prior to death said that the 2nd to youngest came to the care home and tried to get him to give her durable power of attorney and when he refused she told him she didn't care if she ever laid eyes on him again. Unfortunately it would be found out that in July of 2013 she cohorsed her mother into signing a POA, who had already been diagnosed with dementia, so on the day of her father's death she went straight to the bank to put her name on the account. She the went to a lawyer and that lawyer sent a packet to the two oldest sisters showing that both house were put into an irrevocable trust in the 4 sister's name and the 300k in the bank he put 35k gifts to each younger sister and their spouses in order to qualify her for medi-cal. She then put her friend (married to convicted child molester) as the overseer of the trust and stated that at any time she could disinherit the two older sisters, which is highly likely to happen. Yesterday she put a DNR in place on her mother and told the care facility they were not allowed to communicate with the older sisters at all. The facility is very upset because they said all this time with your parents we have never seen the younger sisters until now. Social worker for parents for the past years advise the two older sisters to contact APS.
Submitted: 1 year ago.
Category: Estate Law
Expert:  LegalGems replied 1 year ago.

I'm sorry to hear of this;

A POA is only effective for health care (DNR order) if it specifically states it is for health care (versus finances) and is often called an Advanced Directive.

If the principal executes the POA when s/he is mentally incompetent, it can be challenged in court. This can be done with an Order Shortening Time, a procedure reserved for emergency procedures.

Any evidence that indicates the principal was not of sound mind on the date of execution is helpful (doctor/caregiver affidavits, medical records showing a diagnosis, etc). If the individual had a living will (in CA often labeled "5 wishes") that contradicts the POA for health, that can also help.

Again, though, a normal POA for finances does not give the agent authority to make medical decisions.

Additionally, an agent with a POA has a fiduciary duty to the principal. This means acting with utmose good faith towards the principal. The agent is not to title accounts in the agent's name, but rather is to act on behalf of the principal, using the POA document as authority for making any necessary transactions. The transactions must benefit the principal, and cannot be for the benefit of the agent ("self dealing").

I will let you review this as I continue my reply.

Expert:  LegalGems replied 1 year ago.

California is rather proactive in prosecuting elder financial abuse/exploitation cases; APS is generally the first person notified. In California, elders are defined as persons 65 years and older. Under California law, elder abuse can be both criminal and civil. Criminal elder abuse occurs where any person who violates any provision of law proscribing theft, embezzlement, forgery, or fraud of an elder and who knows or reasonably should know that the victim is an elder. It is punishable by a fine of two thousand five hundred dollars ($2,500) and imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the money, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when money, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950). (California Penal Code Section 368) Civil law defines civil elder financial abuse as when a person or entity does any of the following: 1. Takes, secretes, appropriates, obtains, or retains real or personal property of an elder for a wrongful use or with intent to defraud, or both. 2. Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for a wrongful use or with intent to defraud, or both. 3. Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an by undue influence. Undue influence means excessive persuasion that result in inequity. (Welfare & Institutions Code Section 15610.30)

Expert:  LegalGems replied 1 year ago.

Also if the trust document was executed when a person was not of sound mind, that document can also be contested. Generally if there is Undue Influence - that is when one party uses their position of trust to unduly benefit (think manipulation) the senior, so that they are going to benefit as a result of the undue influence. Giving a trustee carte blanche to disinherit a child for no reason is a red flag.

Expert:  LegalGems replied 1 year ago.

California has certified estate law attorneys; given the complexity of the above, I would urge you to contact an estate litigation attorney so that they may contest the POA via the legal system; they may also recommend the caregiving daughters to seek conservatorship of the parent, so that the court issues authority to the caregiver daughters for decisions pertaining to the parent's health and financial decisions.

Expert:  LegalGems replied 1 year ago.

Also, mediCal has a 5 year look back period- any gifts made within 5 years of the date of applying for benefits can be "voided" and recovered by the MediCal's estate recovery program; as any gifts made without value in the 60 months preceding is deemed to be accessible by the state to help pay for the recipient's needs.

Expert:  LegalGems replied 1 year ago.

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