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Paul Premack, Express-News Banner

San Antonio Express-News MySA.com
Copyright 2011, Paul Premack
March 11, 2011

Family splits into warring factions without mom in command

 
Dear Mr. Premack: My mother lives with my first sister and her husband. I had Power of Attorney in all mother’s finances and a third sister and I have joint owner accounts with mother at her bank. I paid all mother’s bills and took care of all her finances. She had accounts that held money from the sale of her house. My first sister and her husband were using mother’s money, and spent most of it, so my third sister and I closed the accounts. We asked mother what she wanted to do with the small amount of money left. Following her instructions we got a cashier’s check from the checking account and gave it to our first sister, along with mother’s bills to be paid. The savings had a small amount left from the house sale, and it was put in another bank account under my name to be used for burial expenses and anything else mother needs. My first sister and her husband have not paid any of mother’s bills for months and now they want the savings money. They took mother to an attorney and had my power of attorney revoked and are talking about suing me for the savings money. What power do I have to protect this money instead of turning it over to them? – SL
 
You are in a classic nightmare scenario: the children are fighting over money, funds are short, and the tribal elder is unable to control the combatants. While you may see this as your problem to fix, it is legally your mother’s problem, and can only be fixed by authority that is legally lodged in your mother.
 
She could fix it personally if she was capable. She probably was capable for many years, and may have kept her three daughters under control with an iron fist in a velvet glove. But look at her behavior now: she allowed daughter #1 and her husband to nearly empty her bank accounts without making them accountable for the money. She had you (daughter #2) paying her bills because she could not do that on her own. She told you and daughter #3 to move her remaining money, but then not only failed to explain the new regime to let daughter #1, she allowed daughter #1 to bulldoze her into signing a new power of attorney that allows daughter #1 control over the entire situation.
 
There is only one other solution: your mother could take a stand and hold firm, telling all of her daughters how to behave. The money belongs to your mother. The power belongs to your mother. If she is capable of reasserting her own authority then she can clean up this family battleground. If she lacks that capacity, then a judge may have to be given that duty via filing for guardianship in the local probate court.
 
It may be that daughter #1 and her husband (who now threated to sue you) will be deterred when they discover that they may have violated criminal laws when they spent most of your mother’s money. If they spent it on themselves, or they did not have clear legal authority to do whatever they did, it is possible they could be charged with theft. Any theft from an elderly person is punished at a higher level than is theft from someone younger. They won’t want to be exposed to those possible punishments, including jail time.
 
Sadly there is only one sure-fire legal cure: you must start a guardianship over your mother and let a judge decide who should take control. The judge will select an applicant who is best suited for the selfless care of your mother, and who will account publicly to the court for all funds, all income and all expenditures. The newly appointed guardian will even have authority to file suit to reclaim funds your mother transferred during her period of incapacity.

Prior Week: Is document that mashes-up legal concepts valid?
Next Week: Unrecorded quitclaim deed is poor estate plan

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.