San Antonio area (210) 826-1122
Seattle & Bellevue area (425) 296-2919

Paul Premack, Express-News Banner

San Antonio Express-News
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 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.


Prior Week: Does a Lady Bird deed trump instructions in the Will?
Next Week: Why is the state disregarding Dad's Will?

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.