"I hereby constitute and appoint my wife...as Executrix of this, my last Will and Testament and direct that she be permitted to serve with nomibal bond, giving to my said fiduciary the full and unrestricted right to sell, mortgage or convey any real or personal property owned by me upon the date of my death without prior leave of the Court having jurisdictin of my estate and without report and confirmation of such action. In the event that my wife...shall be unable or unwilling to so act, I then constitute and appoint my daughter...as Executrix hereof, granting to the said fiduciary the same powers as I have conferred upon my primary fiduciary hereunder."
Since then, Dad was diagnosed with Advanced Stage Alzheimer's, and Mom with serious Personality Disorders, lacking judgment, and is considered legally incapacitated. She has a PG. He is on Medicaid, with few remaining assets. Mom requested an appraisal, and they have a considerable amount in personal possessions.
If Dad were cognitively able, he's still control things, but cannot. As Dad's advocate and legal guardian/conservator, how do I best protect his 1/2 interest? Can her PG dispose of things belonging to both prior to his death?
6 Answers
Helpful Newest
First Oldest
First
There are two aspects to handling your parent's affairs; while they are alive, and when they are deceased. A will, and the segment you quoted above, only operates upon death. To handle the affairs of a disabled or incompetent parent while alive you need to be named as attorney in fact via a Durable Power of Attorney or you could act as a successor trustee if assets are held in a revocable living trust.
So the first question is: Do you have a Durable Power of Attorney? I'm assuming "PG" means Personal Guardian which is what happens (guardianship) when an incompetent or disabled individual does not have proper advance paperwork. If your mom has a guardian then I'm guessing you do not have proper paperwork in place to handle your father's affairs and, just like your mom, a court appointed guardian may be required.
As far as what the guardian is permitted to do, typically their activity is very limited in scope in terms of what he/she can or cannot do with assets/income and is also closely monitored by the court. You can always go to court to protect your father's interests but you will have obtain standing via guardianship or one of the documents mentioned above.
Most importantly, if Dad is on Medicaid you do not want him to inherit anything of value that will potentially disqualify him from benefits.
Thing is, by law, if a Ward (legally incapacitated individual) requests a new guardian, it's usually granted. Mom's emancipation from me took place December 16th. (Merry Christmas!) She can do so every 6 months. I get to sit back and watch the estate diminish before my eyes. If my Dad were able to comprehend, he'd have a cow!!!!! And he'd be angry! He would not allow my mother to do this, as he always handled everything. But since he can't, I stand in his place. Only I don't know all the tricks.
One ugly piece to this nightmare: This particular judge hates family guardians. He always rules against them. Downstate, where my parents are from, I was a hero. The judge praised my work, and gave me an "atta girl." She would never have allowed this... Up north, where I live and moved both parents to, I'm considered a problem to be rid of. Mom's doing all in her power (including lying) to make that happen. She's an abusive, vindictive, and deluded individual who has become my arch enemy. The more we did to help, try to please her and meet her needs, the nastier she got. I expect more ugly to follow, as she goes back down to see the house I've been cleaning out for the past 8 months. Mother will show her true colors when she sees it and flips out in front of her new guardian. Thing is, I have no standing, and no respect. What a crock!!!
I've been praying for a miracle, but think mom will just reap what she has sown. All our hard work and diligence to preserve their estate will have been for naught. I paid of thousands in just debt to collection agencies and creditors, and got Dad on Medicaid. Now someone else will be gathering where they have not worked or toiled. They are already talking about putting mom in a home...(on Medicaid, too). So what are they planning to do with the family heirlooms? (Nice system-NOT!).
What we need is legislation to protect the family from governmental takeover of estates, and using family Caregivers like this! I have no idea if my attorney is going to be able to help or not. We have an appointment tomorrow.
Thanks for your suggestions and contribution. I'm sure you would have advised me against getting guardianship in the first place. Now I am telling others that, also. Do not do it unless it's absolutely necessary! You won't like the results! They say I will remain as my Dad's guardian, but I've also heard they can take that away... (I guess if I stand in the way of someone's designs on my parent's estate, they can do whatever they want...) This is not a pretty picture. My sister already took some things, and it was against my will. But mom said...and plans to give her more... We grieve.
ADVERTISEMENT
Thank you for your input! I am guardian and conservator for dad. I was mom's but she has a court-appointed public guardian and conservator now. Dad can have up to $2,000.00 in assets, and still qualify for Medicaid, from my understanding. If mom died, all would belong to him. What do I do about that? If dad dies, mom gets all, and I can protect nothing, I assume? But I am named as Executress for both upon death. Can I still do a trust for dad's half in the event something should happen to mom? He is incapacitated by reason of Advanced Stage Alzheimer's Disease and can consent to nothing. Mom is incapacitated by reason of "mental deficiency," or the diagnosis of personality disorder (NOS). Nevertheless, her judgment is off, and needs/wants a conservator/guardian to handle her affairs. She understands none of this thoroughly, as dad cared for her all their 52 year married life. So, I am his legal representative, and want to protect what I can, and I am her daughter/advocate, as I don't believe her needs will be adequately met through her PG. They got some quack to say she could make some decisions. (Little do they know she can't.) Mom's court-appointed "investigator" became her attorney, and dad's GAL became mom's Guardian (which all seems a conflict of interest to my attorney and me). I believe they'll be taking advantage of their position and her cognitive deficiency. My attorney since took the money and left "for Christmas." Don't think we'll get any action/satisfaction there. Wish I had some legal help, and don't know where to turn... My State Trooper friend says I need to write the Judge and ask for his guidance, though I'm not sure he'll be receptive to me, as his "star attorney" wasn't real nice to me. Expecting the worst, but not beyond hoping for the best. Any ideas how we proceed from here?