Guardianship
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This is not a stepparent issue but I hope someone can help. My Mom is incapacitated and lives in a facility. She, my brother and sister live in the same county in IN. I live out of state. Brother is POA, trustee, and designated executor in her will. He is not keeping up with her financial affairs including the paperwork to get her survivor pension she is entitled to. I am designated successor POA but can't do anything as long as he is the primary. He will not voluntarily give it up. I don't even know where to start. Would a court order remove him as POA? Does anyone have experience being a guardian for an adult ward?
I'd get a lawyer
I'd get a lawyer consultation.
Sometimes a lawyer can point you in the direction you need to go. At least that's what happened with us once. Lawyer said he could take our case and charge us or we could file paperwork with the state for $25 and get the same result.
Perhaps a letter from an attorney might get him moving. If that doesn't work, since you mentioned legal guardianship I wonder if probate court would be the way to go.
A lot depends on the exact law where your mom is and how the guardianship papers are written.
Sorry for the confusion. She
Sorry for the confusion. She is living so you are correct there is no probate estate (yet). She had expressed her wish for him to be executor after her death. I also wish to petition the court to be appointed executrix when the time comes as he has no clue as to her assets.
I know I need an attorney but thanks for letting me vent. I just hope it doesn't cost an arm and a leg. I know guardianship can be expensive but reading the probate code in IN it sounds like the POA has the power to act but is not required to. Doesn't make sense to me. I like the suggestion of a letter. Maybe that will prompt him to voluntarily sign over the POA to me.
No matter where you live, the
No matter where you live, the wishes of the person (your mother) are paramount since she willingly chose your brother as executor. Unless he is found to be embezzling funds or commiting fraud, then I doubt any court would see any reason to include you.
On the other hand, if you gently pointed out to bro that you felt he was being sloppy, or that you have a keen interest in seeing everything done properly, then it would be a better tactic to persuade him to voluntarily share duties with you. An executor has the choice of appointing a co- executor, usually a lawyer, if they don't feel competent.
The worst thing to do is "go legal" on him. This has the potential of alienating him or at least hurting his pride. He then would be in a position to block you completely from any knowledge of his management until estate distribution time.
You catch more flies with honey than with vinegar. Unless there is a fortune involved, or you dont care about family relations, then I don't see why you need your knickers in a twist over social benefits. Remind him to apply.
These are all good
These are all good considerations. The number one is what would our mom want? On one hand, she did willingly appoint my brother. On the other hand, she was financially very savvy. When she set up the trust and wrote her will 20 years ago, I can see that the intent was to avoid probate. She specifically designated in her power of attorney that if he failed to serve , it should be delegated to me and my sister. I do feel that I could do a better job of managing her assets . She does have enough to live on so she doesn't "need" the military survivor pension , but she is entitled to it and she has not gotten paid in a year. It may not be fraud, but it is malfeasance in my opinion.
We have tried to work with brother for years. I asked him to delegate me power of attorney rights to deal with some of this, which he can do as spelled out in the document. He could do this and not give up his power of attorney. He won't . He also won't even discuss anything in person. He will literally walk out of the room. I think he finds it overwhelming. Honestly I think if the court removed this responsibility from him he probably would be relieved. In any case, at this point I don't give a rats you know what if I alienate him further.
Thanks so much for your point of view. This is why I have sat on the fence for the past year as far as going further with this.
Perhaps if bro does not want
Perhaps if bro does not want to talk about things, you could simply write him a pleasant note and tell him it concerns you that Mom is not getting her military survivors' pension. Offer to assist him with paperwork because you know he is busy. If he then balks, at least you've made a warning shot across his bow.
What does the document she signed define as "fail to serve"? This would be key and possibly an attorney could advise you of any evidence you need to gather in case going hostile becomes your only option. Right now, from what you've said, you only have suspicions that he is underperforming. Is this possibly simply due to poor comminication from him? Do you have access to financial statements or audits from the trust?
The last time I served as an executrice, I kept my siblings informed periodically and kept open books whenever they requested details. Even the stepkids demanded an "audit" which I gladly sent them...much to their disappointment since they were quite paranoid. It is difficult being a trustee, even harder a guardian of a vulnerable person, because it seems to take over one's life. Perhaps this is what is bothering your brother -- the continual questioning of his motives.
" I don't see why you need
" I don't see why you need your knickers in a twist over social benefits."
A pension is paid into/earned over the years by the individual. Whether it is the lady's pension or hers through being a survivor of , perhaps her deceased husband's, it's foolish not to collect on it. If the elderly lady has a pension claimable but not being accessed, it's less cash the woman has to pay for her medically needed facility she is residing in.
It's cash that should be coming into the elderly woman's account each and every month and being used to pay for the woman's care and needs. It was meant to be part of this woman's income to live on during her retirement years before her death.
It may be that this woman's son is just overwhelmed with paperwork and how it all works. Paperwork and hoops to jump through to get things started can be intimidating. If the woman has a large checking/savings account the son could be thinking 'why bother'. But what happens when Mom lingers for years in that facility and those accounts start drying up?
Anyway, Mro, contact the state's senior/ aging citizen dept, if nothing else they are trained to know and assist in the things you are asking. A case worker may even help your brother locate and do what he should be doing. You could consult with a lawyer, but unless you have reason to believe your brother is financially abusing Mom's business and her needs and doing performing in Mom's best interest that may not be the first route for you.
I'm not sure as to why you know all your mother's assets but your brother, who your mother appointed to take care of her business, does not. Maybe it's time your brother, sister and you get together for a weekend and sit down and discuss in a friendly helpful manner. You sisters could locate and help him fill out paperwork.
ETA...I see now your update. UGH, military pension. Yes, my uncle did have guardianship through the courts for his older brother. The military thing was the worse part. Uncle had to account for penny after penny. Not just through the military stuff but the courts with guardianship responsibilities too.
Sounds like you need to get
Sounds like you need to get your rear to Indiana.
Something doesn't add up.
WHO is paying for your moms facility. The state? IF so, I doubt if the facility didn't do their homework on your mom military dependent status to receive a retiree's pension. Or is it self pay by her your brother writing a check each and every month to the facility.
I have some experience in this area and I can tell you the facilities DO NOT leave any stones unturned.
Self pay. He writes the check
Self pay. He writes the check each month.
I would contact your attorney
I would contact your attorney and get on this ASAP. Failure to effectively care for an elder person can bring down a world of hurt on the person failing to act in the best interests of the elderly. Particularly when the person failing to step up has a legally stipulated duty to do so.
Time to bring a ton of shit down on your brother's head IMHO.
Good luck and I hope your mom is doing well.
A bit late to this discussion
A bit late to this discussion but ........... the pension that you mentioned is it from her husbands military service? If so there are many things to consider in applying for this VA pension. Your mom can only have a certain amount of assets in her name. Anything more than the amount allowed and she will not qualify. There are other things to be considered as well - the paperwork to apply can be intimidating. Perhaps your brother knows she doesn't qualify, or has applied and is waiting a determination - it can take months for the VA to process these things. If she was awarded the pension then it must be direct deposited into an account that your mom (if she is competent) has access to or one that he has access to if she is not competent. The VA will also in some cases, require annual accounting of those funds.
I know that doesn't answer your questions but having gone through this process I saw that perhaps this information would be helpful in understanding why it seems the he is not addressing the pension issue.