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P. Simmons
P. Simmons, Lawyer
Category: Family Law
Satisfied Customers: 26344
Experience:  16 yrs. of experience including family law.
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We have a situation in Texas and need advice. Aged mother is

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We have a situation in Texas and need advice. Aged mother is in nursing home in Town A. There are three sisters (daughters). We'll call them B, C, and D.
Not real sure of the Mother's mental capacity as sister (daughter) B was tossed out of Mother's life and not seen her Mother in 3 years. Of the three sisters, sister D is Power of Attorney. Sister D (PA) is 300 miles away from Mother. Sister C is 150 miles and sister B is 180 miles away from Mother.

Sister B was told 3 years ago that she has been left out of Mother's "new" Will, but she has not seen the Will, and therefore, are not sure if it even exists. Believe a Will is not even needed as the Mother has no titled property and only has a checking and savings account. So, when the Mother passes, the PA sister D) can just write checks to whomever she wishes.

Sisters C and D are totally against sister B, socially and financially, and there has been zero communication between B and the other two. Sister C and D do stay in touch with each other. The PA sister writes checks for Mother's nursing home, medicines, and anything else the Mom needs. Interestingly, all sisters' names are XXXXX XXXXX same checking account, but the PA sister is the only one writing checks on the account. The reason all sisters' names are XXXXX XXXXX account is because it was set up this way about 7 years ago when all were on good speaking terms and only the checking account has not been changed since then. The checking account is set up so the SS check can automatically be deposited there monthly. When the amount builds up enough to pay some bills, the PA sister writes a check. If not enough money, the PA sister must write a check from another account, which sister B is not privy to.

We assume sister C knows about any savings account. Back 7 years ago, all sisters were on the same savings account as the Mother, but the CDs expire and the PA sister moves it around, but we have no information on any savings account and doubt sister B's name is XXXXX XXXXX account, anyway. Sister B does get a monthly statement on the checking account and has access to it via phone. It is never over $6500.

We have reason to believe that the PA sister is spending funds out of Mother's savings for things not related to Mother's care and needs. But, since there is no communication and we have not seen the Mother, we cannot verify anything.
It is our understanding that sister B has no right to see the Will, assuming there is a new one. Another relative, sister B's son, visited the Mother recently in the nursing home and, although she was a little incoherent, she indicated that she has had a change of heart and wanted to make amends with sister (daughter) B.

To find out what's going on, what can sister B do?
Can she contact a local family law attorney and sue sister C, and sister D (PA) and make them show how funds are being spent?
What responsibilities/obligations does the PA have in regard to the Mother's finances?
What rights does sister B have to see the new Will, if it does exist?
In contacting an attorney, does he/she have to be in the same Texas county as the Mother's location, or maybe in a nearby county?
If the PA sister is spending funds to hide money so the Mom can totally get on Medicare as an indigent, then that is not right as records can go back 3-5 years to see the Mom's financial situation. Correct?
What other thoughts/recommendations do you have on what sister B can do?
Submitted: 1 year ago.
Category: Family Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

First, let us be clear...when you state

Believe a Will is not even needed as the Mother has no titled property and only has a checking and savings account. So, when the Mother passes, the PA sister D) can just write checks to whomever she wishes.


That is not accurate. A power of attorney (POA) is not valid after the death of the grantor. Period. So if mom dies, sister D no longer has the power to write checks.



Let me try and address your questions in order


To find out what's going on, what can sister B do?
By far the best way would be to contact mom. If mom is competent she can relay what is going on...or at least what she believes is going on. If she is not competent? Then Sister B could file a motion with the local probate court and ask that a guardian be appointed to conserve mom's estate. A court appointed guardian would trump a POA...basically the POA would have no more power if a guardian was appointed.

Can she contact a local family law attorney and sue sister C, and sister D (PA) and make them show how
funds are being spent?

See above...if mom is not competent, the best recourse is to apply with the probate court (with the help of a lawyer) to have a guardian appointed





What responsibilities/obligations does the PA have in regard to the Mother's finances?

The POA has a fiduciary duty...she must put mom's interests above her own.


What rights does sister B have to see the new Will, if it does exist?

None...until mom dies. Then she can see the will as part of the probate process.

In contacting an attorney, does he/she have to be in the same Texas county as the Mother's location, or maybe in a nearby county?

Nearby is fine...but the probate court in the county where mom lives has jurisdiction


If the PA sister is spending funds to hide money so the Mom can totally get on Medicare as an indigent, then that is not right as records can go back 3-5 years to see the Mom's financial situation. Correct?

5 years is the lookback...and if this is happening, that could cause a denial of benefits from medicaid.



What other thoughts/recommendations do you have on what sister B can do?

I would have sister be talk to mom to see if she is competent. If she is competent then nothing can be done...a competent adult is free to make decisions as they like.

If she is not competent? I would file a motion with the probate court to have a guardian appointed


Customer: replied 1 year ago.

The understanding I have about not needing a Will if there is no titled property is that since sister D (POA) is on all financial accounts as JTWROS, then sister D can just show a death certificate, distribute the funds any way she chooses, and close the accounts, after notifying SS of the Mom's death.


Does sister B need concrete evidence of wrong doing before a guardian is appointed by probate court? Or, does sister B simply determine the incompetency of the Mother and that, alone, is sufficient to appoint a guardian to over come the POA. What happens after a guardian is appointed? That is, who checks out whom? What will the guardian do? How fast does this process go?

Expert:  P. Simmons replied 1 year ago.
The understanding I have about not needing a Will if there is no titled property is that since sister D (POA) is on all financial accounts as JTWROS, then sister D can just show a death certificate, distribute the funds any way she chooses, and close the accounts, after notifying SS of the Mom's death.

If it is JTWROS, then if mom dies D is the owner. THat is accurate. But if there are any assets not in a joint account, the POA has no power to do anything with them.


Does sister B need concrete evidence of wrong doing before a guardian is appointed by probate court? Or, does sister B simply determine the incompetency of the Mother and that, alone, is sufficient to appoint a guardian to over come the POA. What happens after a guardian is appointed? That is, who checks out whom? What will the guardian do? How fast does this process go?


Incompetence is the issue. NOT wrongdoing...the issue will be "is mom competent". IF the answer is yes, then mom can settle her own affairs. If not? Then the court will appoint a guardian.

The guardian has a fiduciary duty to the ward. So the guardian will take inventory of the wards accounts and take steps to conserve the estate of the ward.

How fast? It can take several months start to end....but once appointed the guardian can start to work immediatly.


Customer: replied 1 year ago.

How and who determines the incompetency of the Mother? Does the attorney send someone to determine this before he/she approaches the court for a guardian? It sounds too easy to appoint a guardian that will override the POA. How is it determined why a guardian should be appointed? Could the court decide that a guardian is not needed even if the Mother is incompetent? Will the POA be ticked off if a guardian is appointed? In our case, the POA is the same person who will serve as the Executor of the estate.

Expert:  P. Simmons replied 1 year ago.
This is up to the probate court. The probate court judge makes the determination of competency, based on evidence presented to the court.

The court will require medical evidence...After the case is filed, the court will order a medical examination and a doctor will provide a report to the court.

It is not "easy" by any stretch of the imagination.

The court will not appoint a guardian unless there is clear and convincing evidence that the ward is incompetent. If there is not clear evidence that mom is not able to make decisions on her own behalf the court will NOT appoint a guardian

As for if the POA will get "ticked off"? That I have no idea...but the POA's attitude towards the court action is not relevant to the judge....the judge is only concerned with medical evidence of competency



Customer: replied 1 year ago.

Last questions:


1. Ball park cost (fees) to do this?


2. Why would the court be concerned if the Mom is competent or not? If the POA is taking care of her bills and Mom is getting good care at nursing home, why would the court step-in just because Mom is incompetent? Seems like lot of people are in a similar situation, but the court is not called in.


3. BotXXXXX XXXXXne: We want to make sure the POA is not spending the Mother's money on frivolous things not related to the basic and needed items for the Mother; i.e., not wasting the Mother's savings. Because once it runs out, Medicaid will take over to a certain extent.


So, is the probate court the best way to check up on the POA? The POA refuses to discuss ANYTHING with us. Will not even say one word.

Expert:  P. Simmons replied 1 year ago.
Fees? You can ask 10 lawyers and get 10 different numbers. But ballpark would be $2K to $20K

The court will appoint a guardian to protect the assets of the ward. Simple as that. A POA is great if you are competent. If you are incompetent? Then you are not able to properly supervise the POA...so that would be the reason to appoint a guardian. The court will only get involved if asked...you have to hire a lawyer and file a motion to make this happen...most folks are not in a position to do so.

The way to approach this is with a request to the court to appoint a guardian. The court is not going to inquire into the actions of the POA if mom is competent unless mom asks the court. So if you want to raise this? You need to go the guardian route.

if mom is competent? Then she can take the POA to court if she beleives the POA is not handling the money properly.


P. Simmons, Lawyer
Category: Family Law
Satisfied Customers: 26344
Experience: 16 yrs. of experience including family law.
P. Simmons and 3 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Can we start another exchange, or thread, for more information that we came up with overnight?

Expert:  P. Simmons replied 1 year ago.
Sure

Best if you can ask a new question sir...if you put in the question "for PSIMMONS" I will see it.

Heads up I am on a satellite connection that has be without communications for hours at a time but if you can use a bit of patience I suspect we can resolve your new questions


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