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Dan
Dan, Retired Lawyer
Category: Family Law
Satisfied Customers: 1164
Experience:  Practice areas included family law, elder law, real estate, and transactions
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POWER OF ATTORNEY

Customer Question

AND MY MOTHER HAS BEEN LIVING WITH ME FOR THE PAST YEAR.WE NEVER GOT ALONG BUT AFTER CONJESTIVE HEART FAILURE MY TWO BROTHERS REFUSED TO CARE FOR HER.I WENT INTO A STATE OF DEPRESSION 3 MONTHS AFTER AND NOW FOR MY OWN AND FAMILYS HEALTH I HAVE TO PUT HER IN ASSISTED LIVIVING.HER WILL IS A THIRD TO ALL.SINCE I HAVE BEEN CARING FOR HER,LOST MY JOB ETC HOW CAN I PROTECT HER MONEY<WHICH IS IN MY NAME>SOME ACCTS LESS THAN 5 YEARS SO IT WILL NOT BE SPLIT TO THOSE WHOM DO NOT CARE FOR HER.PS I HAVE 2 SONS THEY ARE NOT IN HER WILL.
Submitted: 6 years ago.
Category: Family Law
Expert:  Dan replied 6 years ago.

Slang:

How your mother's estate is distributed is entirely her decision. You have indicated she has a will, and that it distributes her assets 3 ways between her kids. That is the legal statement of her wishes, and remains her distribution plan until she decides she wants to change it.

I understand your frustration that you have worked to serve your mom this past year and that your brothers did not, but that is not a reason to decide on your own to change how mom's assets are distributed. If you have assets of your mother's in your name, and you still have those assets in your name at the time mom passes away, you have an obligation to disclose to your siblings that you are holding assets of your mother's, and to distribute those assets according to her wishes.

As a mother, you also should be able to understand that you love your children all the time, even if you are sometimes not pleased with them.

It would be no more appropriate for you to decide that the brother's should be disinherited now because they did not agree to take on mom's care this past year, then it would have been appropriate for them to have decided in the past that you should have been disinherited from a share of mom's estate because you and mom "WE NEVER GOT ALONG".

I hope this has been helpful. Let me know if you have any followup questions. If none, please remember to click on the ACCEPT link so that I may receive credit for working on this topic with you. (I'd greatly appreciate it!)

Thank you,

Dan

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The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

PS: If an answer appears to you to have been very helpful, or to have taken above average expertise, and/or research, or if the answer shows an above average amount of time and dedication devoted to your issue, a bonus is nice way to say "Thank you". Thanks!

Customer: replied 6 years ago.
I DO NOT ACCEPT YOUR ANCHWER AS ISNT THERE A LAW THAT IF ASSETS ARE SWITCHED TO MY NAME THAT THEY ARE NO LNGER HERS AS I HAVE FINANCIAL POWER TO INVEST AND ALSO THERE IS A TIME FRAME THAT THEY ARE MINE IF SOLELY IN MY NAME.
Expert:  Dan replied 6 years ago.

Slang:

You stated in your original post:
"HOW CAN I PROTECT HER MONEY - WHICH IS IN MY NAME - SOME ACCTS LESS THAN 5 YEARS".

I read that as an explicit admission that the money you reference was and is the property of your mother. That means that by whatever means it came to be titled in your name, you are merely holding those assets in trust for your mother. The moneys are still your mother's assets. Further, the mere fact that you consider the power of attorney as having any authority in this matter is additional evidence that you know and consider the money to be your mother's property. If the money was yours, the power of attorney would have been a completely irrelevant consideration.

When assets are held in trust for another, the trust does not expire and the assets become the property of the holding party after a period of a few years.

A financial power of attorney is a position of fiduciary responsibility, as is the position of holding assets in trust for another.
"The fiduciary duty is a legal relationship between two or more parties (most commonly a "fiduciary" or "trustee" and a "principal" or "beneficiary") that in English common law [our underlying legal system] is arguably the most important concept within the portion of the legal system known as equity. . . . A fiduciary duty is the highest standard of care at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom they owe the duty (the "principal"): they must not put their personal interests before the duty, and must not profit from their position as a fiduciary unless the principal consents. The fiduciary relationship is highlighted by good faith, loyalty and trust, and the word itself originally comes from the Latin fides, meaning faith, and fiducia."
See http://en.wikipedia.org/wiki/Fiduciary

As agent under a Power of Attorney you have an absolute legal obligation to handle mother's assets solely for mother's benefit, acting only in her best interests. Holding mother's assets in your name, and then choosing to treat those assets as if they were your property, and deciding to retain those assets for yourself and/or your sons after mother's death in contravention of mother's explicit wishes as stated in her Will, is not acting in mother's best interest.

No, there is no law that says that if you hold your mother's assets in accounts in your name long enough that the assets become yours. And there is no law that says that simply because you HAVE FINANCIAL POWER TO INVEST the money has become yours. The money remains your mother's, but is merely titled in your name for whatever reason that was done, which means that you are holding those assets in your name in trust on behalf of your mother. As was noted above, when assets are held in trust for another, the trust does not expire and the assets become the property of the holding party after a period of a few years.

This kind of situation arises quite frequently, where a child of the parents has in some manner and for some reason ended up in possession of the parent's assets, now held in accounts titled in the child's name, often with the initial intent of trying to keep those assets from having to be spent on nursing home costs down the road so that the parent will qualify for Medicaid sooner. Or sometimes the accounts were titled in parent's and child's name jointly, for the purpose that it made it easier for the child to write checks and pay bills, and it would mean that the child could access the money after the parent's death to make it easier to distribute without having to go through a probate procedure. But frequently, over time, the child comes to think of those assets as being "theirs", and they come to believe that the Power of Attorney gave them the right to take 'ownership' of those assets.

Then when the parent dies the child insists that the assets do not have to be distributed according to the parent's instructions (the Will). That leaves the other children in a position of having to decide whether to file a complaint with the police alleging theft and conversion of the parent's assets, and/or to work on recovering those assets through a probate proceeding. The judges will have seen this circumstance play out many times before.

So again, the assets do not become your property merely because they have been titled in your name for a set period of time. And they do not become your property merely because you were given certain powers and authority over mother's assets under a financial power of attorney.

You will do what you chose to do, right or wrong. But I cannot give you permission or provide you a legal excuse for what you are seeking to do. From what you have described, you are holding assets of your mother's in your name, an implicit trust situation, and you have a fiduciary duty to your mother both because you are holding assets of hers in trust and because you are her agent under a Power of Attorney. That does not give you permission to distribute her assets after death to yourself and/or to your sons merely because you are unhappy with your brothers.

Based on your last reply, I do not anticipate that you will ACCEPT this answer, as it is not what you want to hear. But the law, our legal responsibilities, and our moral duties do not only apply only in ways that are convenient or comfortable for us.

Thank you,

Dan

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The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

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