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Siblings of a parent who is not even deceased are demanding (through a lawyer) an account of that parents money.

Vista, CA |

Elderly parent still legally competent and his children are demanding an accounting of his money and assets. Is this even legal can they even demand such a thing? One of the children has legal authority to help the elderly gentleman and the letter was actually sent to her demanding the accounting.

Attorney Answers 6

Posted

Reading between the lines here I would venture to guess that the children are in Dad's will and are now concerned that the one sibling with the Power of Attorney is using such authority to change things to her benefit and to the detriment of the other siblings. The "belief" being that Dad is under the influence or being pressured by duress. This is a shot over the bow warning the sibling that unless the others are comforted that no funny business is going on with changing Dad's assets that they will file a lawsuit seeking a court appointed conservator over Dad's assets and invalidate the POA currently empowering one sibling before things disappear. This is a valid course of action but cannot say whether it will ultimately be successful or not. The court can order a medical review to establish competency.

My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.

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Asker

Posted

Oh wow jeez, thank you for your response I really appreciate your help in this matter.

John P Corrigan

John P Corrigan

Posted

how about checking avvo best answer if you like it?

Posted

Attorney Corrigan may have hit the nail on the head when he says that the letter may be a shot over the bow. Unfortunately, many people think that when they are being kept in the dark they become suspicious. Unfortunately, as a fiduciary of the father, the child with the power of attorney may be prohibited from providing the information. If the siblings don't end up filing for a guardianship in which they would try to prove the father is incompetent, they could still file a report with Adult Protective Services. I would recommend that the child with the POA hire their own attorney to respond and begin keeping a log book or calendar of everything they are doing for the father.

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Asker

Posted

The child with the POA actually doesn't do anything for her father as he is fully capable and does it all himself. She was only put in place as an "in case" as he is 90 years old. Thank you very much for the answer, it is appreciated.

Posted

It is perfectly legal for the siblings to demand an accounting and it is equally legal for the person receiving the demand to ignore the demand. Whether or not that is wise depends on various facts. Consult a local elder law attorney for individual advice.

Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

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John P Corrigan

John P Corrigan

Posted

loved the opening....still chuckling...thank you!

Asker

Posted

Thank you for the reply.

John P Corrigan

John P Corrigan

Posted

who says lawyers don't have a sense of humor!

Posted

If the children are demanding an accounting, they are either paranoid or very fearful that Dad might be changing his estate plan - to their detriment. If he is indeed competent then he must have some thoughts in this matter. He should seek the advice of counsel immediately. With good legal counsel, he should flush out his concerns, not yours, and look at his alternatives.
He may want to revoke the child's power of attorney or as you put it, legal authority. Having run into situations like this, we first have the father examined by several independent physicians. We have also video taped Dad and asked him questions showing he is competent, and then proceed according to the client's wishes.

What you haven't mentioned is your relation to the elderly parent. Are you a child? an in-law? a neighbor?

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Asker

Posted

It's my mother in laws father. She is the POA however she doesn't use it. The father is competent and does everything to do with money all himself. I will advise her accordingly thank you.

Asker

Posted

They know that everything is on the up and up so unfortunately it would seem that they are trying to get him declared mentally incompetent. If they did that and the judge or whomever sees that the current POA is not doing anything wrong would he/she give the current POA conservatorship? or would someone else be appointed?

Posted

I agree with Attorneys Corrigan and Davis. It does sound as though the siblings have concerns that perhaps Dad is being unduly influenced by the sibling with the Power of Attorney. Or, more likely, they are probably worried about their potential inheritance. As Attorney Davis advices you, the sibling with the POA is most likely prohibited, for several reasons, from providing the demanded accounting. First, the Dad, although elderly, is presumed to be competent under the law. As such, he retains the right to execute a power of attorney appointing one of his children as agent/attorney-in-fact. As a competent adult, he also has the right to utilize his money the way he deems best. Second, presuming that the father was competent when he executed the POA, and should he later become incapacitated; the siblings have no right to demand an account because they are without legal authority to do so. They are only contingent beneficiaries of the estate (because your father is still living) and they do not appear to be the father’s conservator or trustee. You do not say whether the father has a will or a trust, if either, but in any case the siblings, as contingent beneficiaries have no rights to accountings of an estate or trust.

The father and the child with the POA should meet with an elder law attorney to fully discuss this matter. The elder law attorney will want to meet with the father separately to determine whether the father is acting of his own volition and whether the father is satisfied with his current estate plans. The attorney will assist the father and the POA sibling with determining the best course of action in responding to the attorney’s correspondence and demands. Depending on the particular family dynamics, it may be advisable to have either a formal or informal mediation to attempt to alleviate the concerns of the siblings without the POA, the sibling with the POA and the likely stress this is causing the father.

The elder law attorney can also assist the child and father with setting up an accounting. This will be useful in the event that the siblings decide to pursue a Petition for Conservatorship or Complaint of Elder Abuse and in the eventual settlement of the father’s estate down the road.. Although, the siblings could also petition the court to set aside or revoke the power of attorney, the POA can usually only be set aside for some type of breach by the fiduciary (sibling with the POA) including undue influence/elder abuse.

I hope this information helps you. If you have further questions, please add to the comment section or email me directly. I am located in San Diego County and would be happy to speak with you, as well.

Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California. The information provided on this site should not be used as a substitute for conferring with or hiring a competent legal advice from a licensed attorney that practices in the subject area in your state.

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John P Corrigan

John P Corrigan

Posted

...but you have to read attorney Friedman''s answer where he PROPERLY instructs us all...is just precious.

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

It is pretty funny, but so true.

Asker

Posted

Unfortunately as I am getting answers here I see that they are not concerned for him, they are concerned about what they are getting out of this when the elderly gentleman passes away. He has a will in place and it was done through an elderly law lawyer all of the children were given copies of this and this was done quite recently actually. So they all know that everything is being split equally. The elderly gentleman had paper work for all his accounting done by the POA for him if he wanted to give it to the other children. He did not want to do that and so did not give it to them. Based on what I know and all the feed back I have gotten here it seems very likely that they are indeed trying to get him declared mental incompetent. If it does go to court and it is show that the POA has not even touched any of her fathers money and that he does all his own bill paying, ect. what would the likelihood of her being made conservator if he does get declared incompetent?

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

How sad that they are acting this way, especially while the Dad is still alive to witness this mess. If the POA filed a competing Petition, the changes would be pretty good, based on the fact that she hasn't even exercised the power of attorney and that she has kept an accurate accounting. Also, the court always looks for alternatives to conservatorships because they are expensive and time consuming. So, if the Dad executed a valid Power of Attorney while he was competent (and he later become incompetent), the court may not want to subject the Dad and his estate to a conservatorship when there is already a valid power of attorney in place.

John P Corrigan

John P Corrigan

Posted

great question.....when was the POA executed and will the attorney who prepared it be your best witness....if the POA was valid when signed and then Dad becomes incapacitated later then the POA will stand on its own with no need for a conservator because the POA was valid when executed and expressed the Dad's clear and precise desire.....this is the factual issue....not later when he is incapacitated but how much time elapsed from time he executed POA (presumably when competent) vs. the later medial exam concluding he is incompetent now.

Asker

Posted

It is extremely sad and I cannot begin to imagine what he must be thinking about all of this. She has been POA for a few years now and it hasn't really been an issue until now. I will advised them about all of this so they can go forth accordingly. I really do appreciate your time in answering my questions.

John P Corrigan

John P Corrigan

Posted

You are welcome.....I hope this can resolve itself without need of litigation.

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

You're welcome. Like John, I hope it can be resolved without litigation. Litigation can be heartbreaking and expensive.

Posted

if one of the children you reference is acting as an agent under a power of attorney (POA), other parties of interest can file a petition through a lawyer in orphan's court which requests the production of an account of all money spent by the agent. they can give this information to the lawyer, or wait till they are summoned to court. they should probably talk to a lawyer. i practice in PA so the laws may differ but the basic idea of my answer is probably correct.

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