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.
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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Medicaid / Medicare Attorney
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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Elder Law Attorney
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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Estate Planning Attorney
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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Estate Planning Attorney
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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Criminal Defense Attorney
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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