Elder law in Michigan state
My sister got my mother deemed incompetent, she retained lawyers in the same office that holds my mothers trust, isnt that a conflict of interest? Can this competency be null & voided? To avoid more lawyers fees My brother, myself and my mother agreed to this incompetency (even though she is not incompetent) to get my sister off of my mothers back, she has tried to control her since the day my father died, 1 year ago. My brother got the full guardianship of my mother, my brother told my mother that nothing will change that she wil continue to pay her own bills, live in her home and do whatever she has done prior to this. Can my mother still do all of this without any problems from the court? conservastor? or my sister?
They also gave my mother a conservator, is he in place for the rest of my mothers life? or can he be replaced by someone the guardian requests?
Additional information
The court gave my mother a public defendent, all he did was recommend to the court that the case be dropped he never showed up in court, so none of the things that were told to him were even brought up in court, for instance the conflict of interest as to the lawyers, that seemed to put a damper on everything that is why the did what they did. there seemed to be no other way to get my sister to leave my mom alone, I was wondering if my mother has to pay for the lawyers that deemed her? my sister told my brother that and I quote " I dont care if she gets her own lawyer or not she will pay for them and this one also, can she do that? we said that she is not, should we bring this to the courts attention if my mom gets billed? she did the same thing before when she tried to deem her 7 months ago and my mom ended up paying that bill.and it was my moms lawyer again.
I understand what you mean when it comes to the conservator, the guardianship is an annual thing, so do you suggest that we change it then?
Attorney answers (2)
Lynnmarie A. Johnson
Reputation Level 9
Answered over 3 years ago.
Bankruptcy Attorney in Grand Blanc, MI.
Many families use the same law office for all of their estate planning needs over the years. However, there could be a conflict if your mother retained them to prepare her trust, and then your sister retained them to file the papers stating that she was incompetent, over your mother's objection at a later date. However, if the family gave the appearance of going along withit, which in my opnion sounds like might have been the case,there would have been no reason for the firm to suspect there was any problem.
IT is unfortunate that everyone agreed to have the court declare your mother incompentent if she isn't. The court seems to find it much more difficult to reverse the decision. Once the court has found your mother to be incompetent, there is no reason she can't still live in her own home and carry on as before, assuming that she is capable of doing so. Your brother as guardian is responsible for making sure she is ok and her bills are being paid, she is getting her medication eitc.
Your mother or family can petition to have the conservatorship ended or changed, but I generally don't recomment to my clients that they do this too soon after the inititial set-up. You don't want to be perceived by the court as being a difficult family, ie one who agrees to something one day and then changes their mind and re-petitions the court the next day.
Geraldine Anne Brown
Reputation Level 14
Answered over 2 years ago.
Elder Law Attorney in Saginaw, MI.
Representation of the trust and the individual who wrote and funded the trust (the grantor) should be the same thing. Many people believe that a trust is mainly used to avoid probate and to avoid estate taxes. Frequently, however, the management of the person and the assets in a situation of disability is the most useful part of the trust.
If the trust is well written, it should explain exactly how the disability of the grantor should be decided. This is usually by the determination of two physicians who have examined the individual or by a panel of family members and friends, plus a physician to make the determination. The trust should also name the person(s) your mother has chosen to be her trustee if she is adjudged incompetent. Usually, the document will also provide that the grantor can reassume all control of her trust by providing the affidavits of two physicians who will attest to her competence. You should look to the portion of her trust that deals with this issue.
It is also significant to note that the trustee deals with assets that have been funded into the trust. This means that they have been retitled to the name of the trust, still using your mother’s social security number. If your mother was adjudged incompetent, the terms of her trust should control unless there are provisions to the contrary in the trust. This is because a trust should become irrevocable and unchangeable upon the disability or death of the grantor.
You should carefully read what the trust says about disability. You should also have your mother get statements from two physicians who believe that she is capable of managing her own affairs. This is the place to start. Unless you know what the trust says and whether she can convince two physicians that she is competent, you cannot begin to contest this issue whether on your own or with any attorney.
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