Photo: Marc Royce
Q: My brother, who has had financial difficulties, is in charge of all my mother's banking because she has dementia. He refuses to share any information with me, but I've found out that he is living off her money. My mother has no idea and certainly wouldn't approve of his actions if she did. It seems as though my brother has figured out the perfect crime. Please tell me how to stop him from stealing what should be our inheritance after she dies.
A: My estate planning attorney, Janet Dobrovolny, says your recourse depends on your brother's official role in handling your mother's finances. If he has been legally appointed to serve as her conservator or guardian, he's required to fill out a detailed report on how he used the money.
You can contact the court and file a complaint challenging his management; most probate courts have investigators who will look into questionable behavior.
If your brother is accessing your mother's funds through financial power of attorney, you have a tougher task. First, you need to go before the probate court and petition to become your mother's conservator. Once you've been appointed, you need to sue your brother for fraud to get a proper investigation into what he's done with the money and to make the case that he should lose his authority. Hiring a lawyer and paying court fees could cost about $20,000, and unfortunately, there's no guarantee you will ever be able to recoup your mother's assets.
I want people to understand that they can prevent this from happening by making sure they have a revocable living trust with an incapacity clause. With this document, it's a straightforward process to file a petition with the courts to request an accounting of how the successor trustee is spending the money and, if cause is determined, to ask the court to remove him or her. In cases of financial elder abuse, a trustee who is found to have misused funds can be made to pay damages.
You might spend $2,500 or so to have a qualified estate attorney draw up trust documents for you. Compared with the stress of trying to undo the devastation that can occur when you don't have the trust in place, this seems like a good investment to me. Ask friends for attorney recommendations, or get some leads at the website of the National Academy of Elder Law Attorneys (NAELA.org).
From the September 2008 issue of O, The Oprah Magazine