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1 – My brother is my dad’s power of attorney. Recently he transferred dad’s car to his son [dad’s grandson]. He also put assets in his own name is he allowed to do this?
The power of attorney holder being your brother may be allowed to make such transfers. You need to determine whether there is a gift-giving power in your father’s power of attorney which specifically allows gifting of assets to your nephew and/or your brother the power holder. Next you should look at your father’s will. If your brother and his family are the only beneficiaries under his will then maybe such a gift wouldn’t be a problem. In the alternative, if the will leaves everything equally to all the siblings then and in that event, you may have an action against your brother. You may also want to determine whether your father is mentally capable. He may have instructed your brother to make the aforementioned transfers. Finally, you must determine whether you have the stomach to go to war with your sibling which in turn could place your father in the middle of your family dispute.
2- My life partner and I have lived together for 20 years. He had a massive stroke. Since he never implemented an advanced healthcare directive, his family has taken control of his healthcare decision-making and shut me out. What can I do to resume control of his health care decisions given our relationship?
If he has lucid moments, he could implement an advance health care directive that would at least give you a partial say in his healthcare decision-making. You should also check the law in your state to see if any provision has been made which protects a life partner in your situation. There may also be financial issues involved since you were living together for 20 years and probably sharing many of your family expenses. Now that you have been shut out by his family, you may not have access to his funds to continue the financial sharing arrangement. Are there any joint accounts that you could access in order to defray your day-to-day operational expenses? If he does regain his strength and mental capacity, it is strongly recommend that you implement a well written and comprehensive durable power of attorney and an advance health care directive as well as any other missing estate planning documents.
3 – I live with my mother and have helped to care for her for over 15 years. She died and left the condominium in which we live to my brother. He is forcing me to move and find another place to stay. Do I’ve any rights? Can he force me to move?
Your situation is very sad. You were the caregiver and helped your mother for a protracted period of time yet she chose to leave a major asset, the condominium to your brother. Now that the condominium is owned by your brother, he is in control of the property. As a result, he can force you to leave the property. Each state will have different rules and regulations regarding the notice that he must give to you before compelling you to vacate the premises. Unless you have a written agreement documenting a financial arrangement with your mother, then you will have no legal claim against her estate. This is a classic case where I normally suggest that somebody implement a care management agreement to protect you as a caregiver. I would have also recommended that your mother give you the right to live in the home until your disability or death and that it at a point in time in the future that the condo could ultimately pass to your brother.
4 - My mother put my name on her deed so I can inherit her home when she dies. Now she wants me to sign a new deed returning the property to her. Can she force me to sign a new deed?
You are not compelled under any circumstances to sign a new deed returning your interest in your mother’s property to her. The main issue that you’re dealing with is what I call a psychosocial issue. What will be your relationship with your mother and the rest of the family if you fail to return the property to your mother’s sole ownership. Your decision could greatly impact the family dynamics and create a chasm regarding your relationship with not only your mother but other family members.
5 – My brother is addicted to drugs. He keeps pestering my elderly parents and harassing them into giving him money. What can I do to stop him from hassling my parents?
You’re dealing with a most difficult situation. Your brother has an addictive personality and will continue harassing your parents. You may suggest to your parents that they turn their financial affairs and the management thereof to either you or a neutral third party. This could limit your brothers influence over their financial situation and require him to badger someone else in order to secure funds. Another alternative would be to establish an irrevocable trust for their benefit with you or a third party managing these assets otherwise I’m afraid that your addicted brother will seek the easiest source of funds available to subsidize his drug habit, that being your parents. You should also make certain that your parents do their estate planning and create a trust for the benefit of your brother so that he does not dissipate the funds that may be allocated to him at the time of your parents passing. You should make certain that you secure a durable power of attorney from your parents say that you do not end up in a controversial situation should their health deteriorate.
6 – My cousin has taken most of my aunt’s money. We think that maybe he has a gambling problem. How can we help our aunt get her money back?
I would highly recommend that you immediately seek independent counsel for the benefit of your aunt. Unfortunately, when dealing with a person who has an addiction to gambling there may be little or nothing available in the way of hard assets to recover for the benefit of your aunt. What you want to do is stop the bleeding right now. It would be important for your aunt to implement estate planning documents including a power of attorney and possibly a trust to protect and secure her remaining assets going forward. It may be difficult to place your aunt in the middle of this most unfortunate and uncomfortable situation. You will need to shepherd her through the process and use your aunt’s legal counsel as a buffer between her nephew and her.
7 – I recently inherited my mom’s life insurance proceeds and her Morgan Stanley account. I was listed as her beneficiary on both accounts. Her will says that half of all her assets are to go to my brother. He is threatening to sue me. Do I have to give him half of these accounts where I was named beneficiary?
Your mothers will covers only those assets that were titled in her name alone. Any assets such as a life insurance policy that has a stated and named beneficiary passes directly to the heir named as beneficiary pursuant to the terms of the life insurance policy. In this case the proceeds of the life insurance policy, it passed directly to you and is not considered to be part of the will. Your brother would have no claim to any portion of the proceeds of the life insurance policy unless he could show that you used undue influence to compel your mother to name you as the beneficiary. The same is true with the Morgan Stanley account where you were named as beneficiary. As a result you do not have to share any of the proceeds of either account with your brother.
Related blogs: Beneficiary Designation
8 - My mother is about to be discharged from the hospital after a seven day stay. Our family is having a disagreement regarding whether my mom should return to her home or go to a long-term care facility. What is the best way to resolve this dispute?
At first you may want to discuss the matter with the discharge planner at the hospital. A review of this proposal should be made with the attending physician. These folks may feel it is in your mother’s best interest to be placed in a long-term care facility. In the alternative, you may want to hire a geriatric care manager to assess your mother’s condition. They will also go to your mother’s home prior to her discharge and determine whether it is in your mother’s best interest to return to her home. They will also suggest to the family whether they will need to hire a home healthcare aid to facilitate your mother’s return to her household. The hospital discharge planner is provided by the institution as part of your mother’s hospitalization. The geriatric care manager must be hired by your family to assist you in the decision-making process.
Related blogs: The Advanced Healthcare Directive
9 - My two sons are an excellent financial condition. I have a daughter that is married and both she and her husband are struggling to get by. My husband and I would like to leave my daughter a larger portion of our estate than my two sons. What can I do to provide for and protect our daughter while not angering our two boys.
You should be open to communicating with your two sons regarding your concerns about your daughter’s well-being and desire to provide for her future. One way to accomplish this goal would be to a trust known as a testamentary trust to provide for her future well-being. Your will could say that she gets a larger portion of the estate which is held in trust and possibly overseen by your two sons or a neutral third-party. She and her children could benefit from the income of the trust and access principal in the event that there was a need. At her death, a portion of those funds could be passed back to your sons or their heirs in order to equalize the distribution from your estate. The most important part of your estate planning strategy is to make certain that your sons note that this is your idea and that you are orchestrating this distribution. It is imperative that all of your children understand what you have done in your estate planning and why you have done it. The worst thing that you could do is to create a chasm between your children and negatively impact their future relationship.
10 - I have an illegitimate child that I have never acknowledged nor have I ever told my wife and children about her existence. Will this child have any claim to my estate if I die?
If you die without a will, then this child may have a claim against your estate. If you die with the will then you have to be very careful on how you construct your will or trust document. It is always best to state that you do not want to provide for this child. Yet in this case, you don’t want to reveal the existence of this person. It is best to confidentially speak with your attorney and explain the situation to the attorney in detail. The document can be drafted in such a way to protect your family against any future claim. The key is to make absolutely certain that you have a will in place at the time of your death.
11 – My father died six months ago he changed his will in the last month of his life leaving everything to my sister and her children. I was supposed to get half of everything according to his prior will. What can I do to restore his old will?
A red flag normally goes up when someone precipitously changes there will within a short time of their death. One normally wonders whether they had sufficient mental capacity to make such a change. Another question to ask is whether your sister used undue influence to compel your father to delete you from his estate planning documents. It is important to try to obtain his medical records in order to determine your father’s mental capacity. You should also review his records with a knowledgeable physician and determine what medications your father was taking. I would also want to know about the relationship between you and your father and your father and your sister. The family dynamics are an important element in determining whether an action could or should be taken in this matter. Ultimately you should meet with a very knowledgeable estate and trust lawyer who handles estates involving feuding families. It is always wise to make certain that the attorney has access to a litigation specialist who specifically handles will contests which are known as caveat cases.