San Antonio Express-News MySA.com Copyright 2011, Paul Premack
October 12, 2011
Is this battle
sibling rivalry or parental choice?
Dear Mr. Premack: My mother is 91 and lives about
five hours from here. My sister has durable power of attorney and I am
backup agent. My brother lives with her and is draining her of all her
money. Can he legally get my mother to go and change him to have power of
attorney? - NF
Your brother may be financially exploiting your
mother. I say “may be” because you are not an objective third party
observer. It may be that your mother, though 91, is competent, capable and
clever. She may love having her son in the house, may find that it is a
great deal to help support him while he watches out for her. Or he might
be illegally abusing and exploiting her.
The best way to handle
this situation is to make a report to Adult Protective Services. They are
part of the Texas Department of Family and Protective Services. A report
to them is confidential, and will be acted on promptly. You can file a
report online at
www.txabusehotline.org or by phone at 800-252-5400.
As to the
power of attorney, your mother is the decision-maker. When you ask “can he
legally get my mother to go and change” the power of attorney, the legal
answer is “no”. Only your mother has legal authority to create or to
change her power of attorney, and she must do so voluntarily. However, if
he is exploiting her, he may be able to pressure and influence her into
something she would not otherwise do.
You need to maintain close
ties with your mother. You need to see her, face-to-face, on a regular
basis. You need to inform her lawyer of your brother’s possibly nefarious
activities so he is on the alert for undue influence. You need to honor
the choices that she makes if she is doing so voluntarily and with full
capacity. But if she is being exploited, is unable to make decisions on
her own, and has lost capacity to manage her finances or personal choices,
you may have to seek to become her court appointed guardian in order to
save her from your brother’s abuse.
Dear Mr. Premack:
I just recently found out that my uncle passed away in 2006. If
he had a Will or anything of an estate, why would the State of Texas not
have notified his next of kin? He was my dad's oldest brother. If there
was a Will is there anyway me or my siblings get to see a copy of the
Will? – RSM
The Texas probate system is not set up with the state
as an active participant; it all happens on the county level. When a Will
is offered for probate, the county probate court takes the role of
supervisor/referee. The court’s clerk posts a public notice at the
courthouse, but is not required by law to issue any other notifications.
After the Will has been admitted to probate, the Executor is required to
send a copy to each named heir – but that has only been a legal
requirement since late 2007.
Consequently, if your uncle’s Will
was probated in 2006 the Executor would not have been required to send any
type of notice directly to any interested party. Instead, back then, it
was sufficient that the Will had become a public record which could be
viewed by anyone interested enough to make an inquiry.
If he did
have a Will that was probated, then it is still public record. You should
visit the courthouse in the county where your uncle had resided. Ask the
clerk for assistance in searching the probate records. You can then obtain
a copy from the clerk.
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
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.
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Paul Premack is Certified as an Elder Law
Attorney ( CELA ) by the National Elder Law Foundation as accredited by
the Texas Board of Legal Specialization and tthe ABA. He is licensed to pracice law in Texas.
Benjamin Premack holds a JD and a Masters Degree in International
Affairs, and is licensed to practice law in Washington State and in