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My mom is in a full time care home in Bakersfield. My brother…

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My mom is in a...
My mom is in a full time care home in Bakersfield. My brother lives in Bakersfield and I live in Roseville. She had an estate plan written last year with my brothers help. I have not seen the plan. My brother has access to her account and is controlling her account.. Recently he told me he is selling. Her house.. He has sold about half of her stuff w/o my approval..I am worried he is stealing from her.. What can I do?
Submitted: 6 years ago.Category: Estate Law
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2/16/2012
Estate Lawyer: Richard, Attorney replied 6 years ago
Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 56,743
Experience: 29 years of experience practicing law, including tax and estate planning.
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Good afternoon. You have a couple of things to protect you here. First, you could contest anything your mother did based on lack of requisite mental capacity, coercion, duress, fraud, and/or undue influence. Second, you can go after him for a breach of his fiduciary duty under any power of attorney. A person acting under a Durable Power of Attorney becomes the agent of the principal who appointed him or her. As agent, that person is what the law calls a "fiduciary." This means that person has a duty to act in the highest good faith for the principal's benefit. Unless the Power of Attorney specifically allows it, that person cannot use any of the property for that person's own benefit. For example, unless the document specifically says so, that person may not borrow money from the principal even if paying it back at the same or a higher interest rate that person would pay a bank. Also, that person can not sell any of the principal's property to him or herself, his or her friends, or his or her relatives even at a fair price unless the Power of Attorney makes it clear that such is authorized.

 

 

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Please be aware that the information provided here is not legal advice. Rather it is simply general information. All states have intricacies in their laws and any information given is simply information only and specifically is not intended to be, nor does it constitute, legal advice. This communication does not establish an attorney-client relationship with you. I hope this answer has been helpful to you.

 

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Customer reply replied 6 years ago
My brother changed the locks on the house and will not give me a key. He also will not send me her bank account statements. He took $25000 from her account two years ago. Promised to pay it back but hasn't. Can I contact police?
Estate Lawyer: Richard, Attorney replied 6 years ago
This isn't really a criminal case at this point. Rather, what I would suggest you do is file a civil suit against him demanding a full accounting and access to your mother. I would also contact the local agencies dealing with elder abuse. He's obviously taking advantage of the entire situation.
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Customer reply replied 6 years ago
How can I get a copy of the trust doc and bank statement? How do I go forward with a civil suit
Estate Lawyer: Richard, Attorney replied 6 years ago
If he will not produce it voluntarily, file your suit in civil court....you will want a lawyer to help you with this...and as part of the discovery process you can compel the production of all this information.
Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 56,743
Experience: 29 years of experience practicing law, including tax and estate planning.
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Richard and 87 other Estate Law Specialists are ready to help you
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Estate Lawyer: Richard, Attorney replied 6 years ago
Thanks so much!
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