Q: I took great care of my parents my entire life. My Mother recently passed. I am being kept away from my 87 year old father. He suffers from dementia. My Aunt & Uncle are controlling Dad for their financial gain. They are taking his money and acquiring assets. They took him to make a new will with their attorney. (Baldwin Twp., PA)
A: If you feel they are exerting undue influence on him, or he is incompetent to manage his own affairs, you could see a local attorney about petitioning the court to become his guardian. As a child, you would qualify, with other siblings if there any, to be a guardian. On the financial management side, your dad can do, or allow others to do, pretty much whatever he wants, irrespective of whether and to whom he has provided powers of attorney. This is true even if the results are adverse to his interests or to the interests of his children. You can attempt to involve the police or elder protective services, but it is generally hard for them to take action where the senior cannot lucidly express an objection. The most common course of action is to seek a guardianship with the probate court. The guardianship supercedes your father’s right to manage his own affairs, including others doing so with his permission or using a POA, and the guardian has the right to sue or pursue charges if money has been stolen. Ideally, you want to request that you be the conservator, but if there is significant friction the court may elect to appoint an independent conservator, usually a probate attorney. In general, courts do not take kindly to elder fraud, but non-appointment is a risk to consider.
Q: My appointed attorney made it sound like I was agreeing to have someone help me care for my mom, and I had told her from the beginning I did not want the state to appoint a guardian. I had no idea till it was too late. I would have never given my mother’s power of attorney away. How do I appeal this?
A: I would need more information to answer this. If you just “agreed” to it, and you haven’t gone to court and obtained a guardianship order, you should be able to tell your attorney you have changed your mind. If your attorney filed a petition, a hearing was held, and a judge issued an order which appoints a guardian over your mother, and you participated in this proceeding and now, you want to rescind the order, that is an entirely more complicated matter. You will probably need a legal opinion from another attorney on how to challenge the order. Don’t wait, tell the attorney now of your intentions.
Q: How can I protect my Dad’s retirement money from his new wife. I have power of attorney. She took $4,000.00 from him before the marriage. Dad is mildly impaired. He forgets to eat and cannot manage money. I took over finances, so she took him from PA to West Virginia and forced him to marry her without my knowledge. What can I do to protect his finances? She is trying to withdraw his retirement money. (McMurray, PA)
A: Unless your father is mentally unable to manage his finances, which would allow a guardian to be appointed, you little at this point. He needs to see an attorney. A trust arrangement could be established for his assets that are not IRAs or Qualfied Plan Accounts. Please note that in a guardianship proceeding, a wife is generally given higher priority to be appointed than you so you would need to prove she is not qualified to serve as guardian of his estate. You will need to get him to an attorney if he is going to be helped-assuming he wants to be helped. You need to understand what a Power of Attorney is. It is simply an authorization from your dad to do things on his behalf. If it is a “durable” power of attorney, that power continues even if he later becomes disabled. The POA does NOT, however, remove his ability to make his own choices. So, if he WANTS to give his money to his new wife, he can. There is nothing you can do about it, unless you are appointed by the court to be his guardian. You describe him as “mildly” impaired. That is not likely to meet the legal standard to show that he needs a guardian. Talk to a lawyer. You can discuss how she is manipulating him and whether there is any wrongdoing there. Also, if he creates an irrevocable trust and makes you trustee, his wife would have to convince you to release the money. His financial estate gets even more complicated by the fact, that if you and he transfer assets out of his name, and he dies leaving her with little or no money, she can challenge by filing an election against will, which if successful, she could claim one-third of certain assets of his. This is a complicated situation and he should really see a lawyer.