My mother was diagnosed with vascular dementia in Oct 2016. My sister and I had already spent much time with her, especially my sister, due to two rounds of breast cancer, a mastectomy, & daily treatments. I worked full time then but did all I could. After the dx, Sis was given POA, both durable & medical. We put a home equity line of credit in place to make repairs on her home so that when leased, we'll have an ongoing income which will, along with her SS, pay for her AL apartment. While all this was being put in place we traded nights to feed her and stay with her overnight. She was having delusions and was scared to death in her home. She believed people were in her attic and called the police several times. We finally found a nice ALF that we will be able to afford and moved her in on July 15. So now we just have to manage the repairs, have an estate sale, and find renters! Mother will be cared for properly and we get our lives back. So we thought... First 3 weeks Mother was furious and did all she could to get us to take her back to the house that she hated. Made our lives hell. Then she was put on Aricept and everything changed. She was calm and pleasant. Whew, glad that's over! So we thought... I go for a visit and she's really on edge. Says my brother (who is a 65 yo alcoholic) was just there. That night she reverted back to furious. She accused us of taking her money and checks. (She had no cash and willingly gave up her checks previously). This is still the ongoing attitude. Added twist: As I'm paying her bills and checking her account, I discover that my brother's utilities and auto insurance have been set up for automatic draft from Mother's bank account! He can and does work so there's no reason that this should be the case. I speak with my aunt, who advises that the money be moved out of the account and the bank notified not to pay that going forward. I now am pretty sure that brother's visit was what flipped her switch. I believe he wanted money and that's what brought up the problem of her not having her checks. I did switch the account and informed the bank of my reason. Today he picked up mother and took her to the bank. He told them to change the address and phone number on the account - his of course. He is not, has never been a signer on her account, because she didn't trust him (her words). So the banker called me and let me know. The change was stopped but this shows his manipulation of her. Sis and I spoke to an attorney about guardianship but that will cost $12,000 or more. We're not well off. What is the point of spending all her money to protect her money? Either way, it's gone. She can rescind the POA's at any time and then what? He has done nothing to help us with her care. I tried to involve him in the decisions but he wanted to sell her property right away, as is and when we wouldn't agree he never called or showed up again. He didn't speak to Mother for over 7 months until his electricity was turned off. Any ideas or suggestions are appreciated.
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I am stating to the ALF that from a medical view, I don't believe that it is in Mother's best interest to leave with her son. The facility now understands that he only upsets her. My mother physically attacked my sister and one of the aides for no reason about 2 weeks ago. I'm quite certain that it was after she spoke with him. After she talks to him, she becomes very agitated. Not only do I worry about her physically and emotionally, but her future is at risk. That brings us to my sister having Durable POA, she has informed the ALF that he could jeopardize all that we have planned to keep paying for her care if he's allowed to take her away from the Assisted Living Facility. I have no doubt that if he gets her away from there, he will have her sign that property over to him. That is really all he wants now. If he gets that, we'd never hear from him again. I'm sure that we could have any paperwork deemed null & void due to her condition, but what a lot of red tape to deal with! Also, just more to upset her. So, they've been given specific instructions that she shall not be allowed to leave with anyone without one of us giving permission. There's only 3 people that I would not give permission to: my brother, his son, and one of his daughters.
I so wish he would just be a decent son and call or come visit his mother and keep things light, easy, and fun. She has a good sense of humor if she's in a good mood. Of course, I've only seen her either depressed or angry in the last several months. Though, the staff all love her and say how she's so sweet and funny. He has not come back and I would hazard a guess that he's spoken with an attorney and learned that he has done this to himself and has nothing on his side in this battle.
Ok folks! Next step, we find out if the RE Broker will list it while he's living there or if I'm required to have him removed first. If he must be removed, we'll be dealing with the sherrif! I'll keep y'all updated.
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I'm sorry I didn't answer right away. We are busy in defense mode. I will post results soon. Hopefully, our troubles will help someone else. It's so sad but I've learned that this is a very common problem.
I did a search on 'Can DPOA restrict visitor' - first result was LegalZoom, and it does say that "...a medical agent under a durable power of attorney has the authority to restrict or deny visitors access to the principal." So, if your sister's DPOA has discussion about medical agent OR she was also granted MPOA, she CAN tell the facility to not let him and his minions into the place. He can attempt to fight this legally, but it will take him time and money and will not happen overnight.
Best if you read the article yourself, but the only time the above would NOT apply is if the document specifically stated that the POA would not have that power. Most POA documents are standard, run of the mill, so unless someone KNEW in advance, it is not likely this would be the case.
THIS can buy you some time so you can get the restraining orders in place. Although you can start the process and get the temporary restraining order in place (should be able to have that in hand the same day), you should have an Elder Care attorney lined up. Anyone can get a "free" consult. That doesn't do squat for him, but at least having an attorney in the event that he decides to fight you all will be key. As much as you do not need more money flowing out the door, mom's "assets" can be used to pay for this.
You or your attorney told him he would have to move. Has anyone started an eviction process? If he is refusing to go you will need that as well. Even if he hires an attorney, they will have to get a court date and fight it out there - just having an attorney will not get him anything. So it is not like he can get one over on you, so long as you RUN to the court house to start proceedings before he might be able to! Again, that initial restraining order can be in your and your sisters hands the same day.
Document whatever you can (his behavior, mom's condition, etc) and bring all relevant paperwork to the consult with your attorney.
"So, I'm wondering if we can get a restraining order and how one does that?"
The only one I ever got was initiated by me, with no attorney present. I went to the courthouse and requested it - this was too long ago to recall the details, but I do remember filling out paperwork. What this got was an immediate but temporary restraining order (other party must be served and have an opportunity to respond.) We had to meet with the judge after he was served. The judge reviewed my request and comments, asked very few questions and granted it. Note however that this was only for 4 months (I did not realize that at the time). I had to go through an attorney and the courts to "formalize" it and have it made "permanent". Be sure to check on this if/when granted.
So, make haste to the nearest courthouse and ask for a restraining order. I cannot recall, is your sister local? I believe you can only request one for yourself, but since she is POA, she can request for herself and mom. Details would be good when you fill out the paperwork (mom's condition, all the stuff he's doing, etc.) Be sure to share the information with the staff at mom's place, and provide them with a copy (backs them up if he decides to bring the police - wouldn't hurt to provide them with a copy too).
Kudos to your RN Tam!!!
Apparently, his daughter is doing ok. I wouldn't be surprised if she pays for an attorney, or her husband is a court bailiff and I would assume that would give him access to a few attorneys that would, at least talk to him. And, when I was looking, I found several that advertise initial consultation is free.
I would hope that any attorney would ask a lot of questions about our mother. I don't believe that he can answer most of them. He knows what properties she has. He doesn't know who her doctor is, what meds she takes, what her medical conditions or illnesses are. He knows nothing of her, because he hasn't been involved, at all.
Well, that made me rethink my idea about not turning him in. Disgustedtoo, I know that you're right, HE has continued this exploitation of her all these years and even though I don't want to do this, I have to protect our mother. He doesn't want her living there because he believes it would be best for her. That type of argument would be welcome! He wants her there so she can continue to pay all his bills and ultimately, he expects to have that property as his own!
None of this surprises me. What happened next did...I called TX Dept of Aging, who told me to call Adult Protective Services. I explained what has happened and asked to speak to someone that could let me know if his actions actually rise to their standard of exploitation / financial abuse of an elder. I was told that I just need to call an attorney. I was surprised to learn that if she's not a client they cannot help me. WOW! They apparently are fine with him taking her money. As long as he doesn't take government money, they don't care!
So, I'm wondering if we can get a restraining order and how one does that? If he wants to get an attorney and ask to see "the books", I'm fine with it and I know my sister is, as well. We have nothing to hide. But, taking her away from where she is being cared for, is not acceptable and even kind of scary. I'm worried that if she becomes very agitated, something bad could happen. He is a heavy drinker and has been violent with both me and my sister (as adults), and he's been accused of violence by every one of his 5 ex-wives. I do think he would go get drunk with his buddies down the road and leave her there alone. This is an old mobile home right on a very busy highway. Not a place for a delusional woman that frequently doesn't know where she is when she wakes up.
If I don't find a better answer tonight, I'm planning to go to my local police station and ask to speak to someone. My sister and I are really concerned about this. We are both afraid of him. To the point that if we go to Mother's house we try to go only if the crew is there working!
If the elder being abused has cognitive issues, be sure to let APS know this, as any interview with them, which appears to be on the 'to do' list, should be avoided or advocated by whoever is placing the call. Provide documents to prove the elder is not competent.
Although it would probably incur some costs, perhaps the attorney you were working with could send some kind of legal 'cease and desist' documents to your brother and his children. That should include threat of legal action (APS) if they continue to harass you, your sister and/or your mother. Perhaps just a nice visit by APS could put some fear into those taking advantage of mom... It does not necessarily mean that charges would be brought up in the legal system, but it would go a long way to putting a stop to the nonsense. At the least, a restraining order should be put on all of them to stop them from harassing you, your sister and your mother. There is no jail involved UNLESS they break the order, and one of you would have to report it. Even then, if the police got involved, it might just be reinforcement of the orders, not arrest, unless he/they continue their harassment.
Despite what mom feels or felt for him, you *should* put a stop to it! She is in no condition to understand what is going on - it is up to you and your sister to understand it and work to protect her, even if it is from herself. In the end, if he continued to behave like this and eventually end up with being arrested, charged or even jailed, it would not be YOU or your sister that did it to him, he would be doing this to HIMSELF!!
Also, if he is so hard up for a place to live and how to pay for it, where would he ever get the money to hire an attorney, if he could even find one who is enough of a slimeball to take a case like this?
We took all our paperwork to an attorney (and paid for the consult, to be sure that we can use him for backup if it becomes necessary). He agrees that we should be able to move forward using the DPOA and MPOA. Yes, our brother can and is causing issues, but we can dispute all his claims, if it comes to it. I agree with Disgustedtoo about using her various doctor's diagnoses to stop her making any changes now. She is not capable of making sound decisions and we ALL know it. I would think that any attorney would not move on this, once they are faced with all our documentation.
Because she has some good days and because I felt that we had no choice, my sister and I went to see my mother and I was very straight with her - that we were aware that our brother was taking advantage of her and that she had to stop allowing it. I made it clear that what he was doing was illegal and that if we allowed it to continue, we would be complicit. I told her that I had moved her money to protect it. I told her that if she truly wanted to go back to the way things were, living in her own home alone, with her sitting in the dark staring at her feet and believing that people were living in her attic, constantly scared to death and calling the police, all the while paying everything for a grown man that is capable of taking care of himself, then we would back off and walk away and let her son take care of her money and she could try to get him to take care of her. I explained to her what she already knows; that he won't take care of himself so no way we should expect him to take care of her. And, I made it clear that if she chooses that route, we would walk away, and I mean WALK AWAY! I explained to her that I will not watch my sister keep doing all this to the detriment of her health and mental well-being. My sister has had the brunt of all the work and abuse by my mom and I told her it had to stop and that's partly why she had to come to an ALF, besides for her own health. I also reiterated that if things had stayed the same or if they went back to the way it was, the State of Texas would surely step in and take control of everything, including taking all that was still in her name. She seemed truly surprised that all of this was going on and she said she didn't remember most of it, but also made excuses for things she said and did, which really causes us to not know how much is the dementia and how much is her making trouble, which like a teenager, she seems to really enjoy these days. She, of course, blames it all on her being in AL now and says that if she weren't in there it wouldn't be happening. We told her that all we wanted her to do was to stop allowing our brother to do this. Stop getting in the way when we try to stop him. She agreed and said she didn't want us to give him the management of her money and her care. I was very firm with her on all this. I was very clear that we wouldn't sit back and watch our brother keep taking, while we did all the work taking care of her. We felt that we needed to make sure that she is as bad off as we believed. This gave her a chance to get back in my face and tell me "what for" and get her say on how she wanted things done. She did not. As a matter of fact, she seemed to have forgotten the entire thing within about 30 minutes. She called my sister and asked her to go pick up some items for her at the store and we haven't had her mention any of that confrontation since then.
She does remember giving my brother everything he ever wanted, because that all started long before she was ill. It's basically been this way his whole life. That is why this is so difficult. If I didn't make myself clear before: Mother created this monster! She has always given him whatever he wanted, even if it meant that our Dad and she did without, and certainly my sister and I were never considered in those decisions. (Yes, I have some resentment about that, but I have always also felt very thankful that I wasn't in his place. I had to learn to care for myself, as did my sister, and I believe we are better for it.) So, legally speaking, the ACTUAL elder abuse would only be considered for the things he's done in this year, like having her turn on and pay electricity for him and attempting to make changes to her bank account. We cannot look at all the years past, including his taking anything of value that belonged to our Dad, his truck, guns, and tools. Mother claimed that he took all that without her approval, but we can't really know. Dementia is cruel, what's true and what's a delusion? So, we can only use what we've been told by the bank. Not much to go on, is it? There's moral and then there's legal, and unfortunately they are not the same thing.
We moved forward...the home repairs uncovered more problems: the foundation beams and joists are all completely rotted. Mother told me about 5 years ago that my brother had made a lot of repairs under there and of course, she paid him to do it. Then again, that could be the illness or a cover for money she gave him. We are seeing things that make us believe that she's been sick much longer that we knew. And we have discovered that she tried to hide the money she gave him because she knew that anyone would see it as wrong. This means a large extra cost to repair. So, now we've had to access the entire amount of the line of credit on the house. We have had to take on a lot of the work that we would have hired out because of this, but that's ok. Mother is adjusting (finally) to the ALF. We are going to be very close on making the payment in December and may have to contribute our own money to make it. This is scary because neither of us are in a position to do that. We just have to have faith that we will be able to get by and things will turn out ok. We see a light at the end of this tunnel. Then I realized that Mom is getting worse. I went to pay her bill and visit her at the beginning of Oct. She was in one of the common rooms playing Bingo and would not come out to see me, because she didn't recognize me. At least that was how it seemed. I didn't try to go take her out because I didn't want to upset her or cause a scene that would upset the others there. We try to always be very upbeat and positive around her and the other residents. She has stopped calling or talking to us or her sisters on the phone. We have to call her and then she only says the same things over and over. Not good. Aside from the concern for her, as her care needs increase, so will the cost of her AL.
As the attorney advised, we sent our brother a letter explaining that no further access to mother's account would be granted and that a RE broker would be coming around very soon and that he needs to make other living arrangements as soon as possible because we intend to sell as soon as possible. We didn't give him a definite time to move, just said quickly. We were hoping that he has been working on this all year,since I informed him about the probable loss of the property, one way or the other, and I would like to think he would want our Mom cared for. This should be no surprise, as I explained all this about private pay vs. Medicaid back in February, plus the taxes on that property will be due in January and none of us have the money to pay those. We must sell the property to access those funds for our mothers care. It's only worth about $90k, but it will help us keep her in a decent place for a couple of years longer. But, as usual, this is all become about our brother, now. So now we, my sister mostly, is being attacked by members of our brother's family, saying we're trying to force him out of "his home". The property is in our mother's name and she's always paid everything on it, including taxes. I don't see that this is so much to ask. I pay rent and utilities, car payment and insurance, as does my sister and well, everyone that I know, except my brother. Apparently, he is still under the idea that what belongs to his parents, belongs to him! You know, our children always used to have that idea, until they grew up and began saving for and paying for their own things and property. And, now someone has called Mother and upset her and put it in her head that my sister is committing "elder abuse". She claims that she never saw the facility that she's in (I have the cancelled check that SHE wrote for the deposit) and that my sister and her husband have taken over her money and her life. She's saying she's going to get an attorney. Truthfully, Mother couldn't find an attorney if he were at her door in a paper sack, but I'm sure my brother and his daughter can. Now, we are right back where we were. She is so easily maneuvered that she doesn't understand or remember what we explained to her back in September. She had begun to get used to her little apartment and was doing well. She has made some friends and enjoys helping in the dining room, prepping for mealtime. She also helps with residents that are not physically as well off as she is. Now, she's back to scheming and trouble-making.
The attorney advised me to call Adult Protective Services and turn in our brother. Our aunt (who I have made aware of everything from the beginning) wanted me to turn him in, as well. I've heard that advice from many people. I put a stop to his actions but I haven't turned him in. I've given lots of excuses about it, but the truth is this: I don't want to. My mother loves him much more that she's ever loved any other human being, and I am including my sister and myself. We've always known that because it was always made very clear: He always mattered more and he always got more, whether it was things or allowances made for his behavior. And, she knows that she's always bought his love and she was okay with that. Who am I to send him to jail for doing exactly what she has allowed and even encouraged his whole life?
We are moving forward, ignoring the "family" attacks and Mother's accusations, but I'M PISSED. NO, I'M OUTRAGED. I'm so angry and worried about all this, that I haven't slept in a week, until last night. If they do find an attorney that will take their case, I am truly ready to step away and wash my hands of the entire thing. I know that my mother will not be taken care of properly. She wants to go back to the old house. I'm sure that if they revoke the POA, she will sign over the properties to her little boy and he will sell it or continue living there, with her paying for it. If / when the police get more calls, they will request a social agency make an evaluation and then the state will take everything and put her where there's a bed, then take everything. Sadly, I'm just almost okay with that. I'm so tired and disgusted by all of it. People that claim to love her, that are willing to sacrifice her care so a grown man doesn't have to get a job and pay his own way are making this so much more difficult than it needs to be. I don't see how anyone can think we're getting anything out of this. We all know that there will be no inheritance! That's been quite obvious for over a year now. Her care will take everything that she has left. Maybe if my brother hadn't drained her over the last 20 years, or better, maybe her care would have been certain. Maybe we could have kept her in her home and been able to pay for a nurse. I know I shouldn't be indulging in the "what if" game, but it's difficult now that I see what's been going on all this time. I hear people say, "it's not about the money", but those people are never the ones that are responsible for paying for all this. Or, they're not the ones that are or have been screwed over by the people they thought were their "loving family".
Okay, so sorry to pour out all my pain and anger. Rant over.
There is NO NEED FOR GUARDIANSHIP if you have the DPOA. Then continue on with what you have done at back, etc. Don't pay brother off period. it wont' work; he'll continue to harass and bleed you dry. Explain that Mom needs all the assets she can muster to continue to pay for her care longterm -- brother should understand this. No one gets money until mom dies.
In my parents situation, they had life insurance policies that they received shares with the company. For now, too much trouble to cash them in (liquidate).
Despite posting about all your experiences AGAIN, the original post proves the point that what YOU suggest DOES NOT work. Clearly the brother was able to get mom's account information and then use it on his OWN electronic account withdrawal to pay for his bills (auto pull rather than auto push). You say set up auto payments on your side - sure, as long as no one gets your info and uses it as he did. Therein lies the problem. IF the sisters did not have DPOA, they would NOT have discovered this was happening and NO ONE would have been the wiser. He could have continued on and set up any other payments to withdraw from mom's account. There is NO WAY for a bank or credit union to know that this was not authorized, as it IS all done electronically, or as you say, "digitally". NO one would be there to intervene.
Although people who WERE trusted to handle your affairs when you cannot can abuse and have abused that trust, more often it is NOT those people who abuse the person. Also, I have said it before, IF you become incompetent and you do not have anything set up, WHO is going to watch out for you and your accounts and/or personal property? Once you cross that barrier, you become easier and easier to take advantage of. Your method is fine SO LONG as your remain competent dear. Your dad or foster dad or whoever it was that was taken for a ride by some golddigger - that would NOT have happened if he had set up DPOA and/or trusts - which is likely what your golddigger did. Not having someone and a process in place opens you up for this kind of abuse, not generally the other way around.
ALSO, one does not need DPOA to abuse anyone. Going "digital only" does NOT protect you. More theft of funds and abuse of CC numbers, including debit cards, occur than any DPOA/trust abuse. Brother here went "digital" and was having a good old time until the DPOA discovered it!!! Debit cards, used with PIN or as a "Visa" charge, are very dangerous because if compromised (usually by hackers) your funds could be drained and it takes time and effort to correct these issues and get your money back. No overdraft does limit the damage, but the damage can still occur. Personally I only use the debit card at ATMs to withdraw cash if needed, but that is extremely limited and only "trusted" ATMs are used. CCs do limit liability in the event that a card is compromised. HOWEVER, when a person is no longer competent, they CAN be taken advantage of, either in person or over the phone (or by hackers). Once you sign or agree on the phone, it is still fraud, but it is MUCH harder to prove and take care of. If a person is not competent and their cards are compromised, WHO is going to find the issue AND stop it??? Read the original post again - when they attempted to change accounts to thwart the brother, he took her to the bank and would have set himself up big time! In many instances, bank employees are NOT familiar with everyone who comes in and he could have gotten away with this. These sisters lucked out in that the bank called to inform/question the changes. Without that DPOA and having a good relationship at the bank, ANYONE can do this - so long as you do not appear to be "out of it", anyone could take you to the bank and have this done. My mother's cousin was handling her sister's will/estate. Hubby was being "protected" by her as he had dementia. She refused to sell a furniture item to me, a known person, but lost the furniture and the payment for it because the check used was bogus. Most stores have equipment that checks a check, but taking one from a person - nope. Before the estate was settled, she did not trust the attorney and withdrew funds from the estate account (big no no as probate was incomplete). One year and a day after her sister passed, she died. I was next in line to handle the estate (hooo boy that was not fun!). Fortunately she messed up and a CD that matured did not go into the estate account, otherwise I would not have been able to grant the woman's distribution wishes in her will. Meanwhile... it took another year to close it all out... I found out that the nephew, son of the man with dementia, had been taking dad to the bank and withdrawing money. He was probably a little too greedy and in that case the bank employees reported it. The state took over and gained guardianship. We were not involved, but assumption is dad was put in a facility and everything liquidated, so son probably ended up with nothing. When my job was nearly done, the remaining funds were to be split between mom and son. I sent him a check for his share, but he wanted mom's as well. Sorry dude, not going to happen! Even the attorney office I was referred to by the dad's guardian was sketchy (out of state, too far to travel and hand it over.) My attorney said make out check to the Estate of cousin, but attorney wanted it made out to them claiming there was no estate (why not?) No, I am sending it as instructed, what YOU do with it, I cannot control, so have at it. They probably just deposited it. The son did NOT have DPOA, he just took advantage of his dad. Not all banks would report this, so BEWARE!!!
I asked before, I ask again, IF YOU become incompetent, WHO do you think is going to watch over your accounts and possessions and PROTECT YOU? Not the bank. Not the CC companies. Not the court system. NO ONE, unless you assign someone who you fully trust to take care of everything for you when you no longer can do it. DPOA DOES NOT take effect until you are no longer competent. That person or people assigned DPOA CANNOT start managing your affairs until you cannot; meanwhile as long as you ARE competent, you watch over your own accounts yourself! If you find they start taking advantage of you, you can stop them and REVOKE the DPOA and hopefully find someone else you can trust. Given the fact that you do not seem to be able to trust anyone, I feel sorry for you....
(side note - most everyone should have heard about the Equifax news... THIS is going to open up a HUGE can of worms! The one thing they suggest doing is something I had already done for other reasons - FREEZE your credit at all three credit bureaus. In some states this is free - I had to pay $10 apiece. This prevents ANYONE from opening any new accounts (including you) AND prevents anyone from accessing your information - if you were compromised, your information IS already out there, but in my case they will NOT be able to use the information to open new accounts, buy anything, get a job, etc, all the things your credit information gets for you. IF you need it, you can "unfreeze" it for a one-time use, to get credit or whatever you need, then it is frozen again. It does NOT protect your current accounts, so you still have to monitor them. Because of the issue I had, I had to put alerts on ALL my accounts - I already was monitoring all my accounts fairly closely, the alerts just make it better/easier to catch something untoward)
Quick lookup on ablenrc.org:
"Am I eligible for an ABLE account?
The ABLE Act limits eligibility to individuals with significant disabilities with an age of onset of disability before turning 26 years of age.... "
AND
"You could be over the age of 26, but must have had an age of onset before the individual’s 26 birthday."
It states if that onset of disability is before age 26, you do/do not have to be a recipient of SSI or SSDI, but you must have proof of the disability occurring before that age, meet SS requirements and have a licensed doctor's certification. You could be over the age of 26 to set up an ABLE account, but *MUST* have had an age of onset before the individual’s 26 birthday.
I doubt mom was diagnosed with dementia before she was 26....
For anyone (YOU know who you are) attempting to use this method who does NOT meet these conditions, YOU are breaking the law!
STOP posting this kind of information - GET the correct information before spreading nonsense!
1. Has mom been assessed for competency? If not, her doctor, APS or a third party could perform a mini-mental exam. This would incur minimal cost, if any at all (doctor should take insurance payment.) One should be good, two would be even better. If she is deemed incompetent, she CANNOT revoke the DPOAs NOR can she assign a new one.
2. The dollar amount seems quite excessive. It would only reach exhorbitant amounts if someone, including mom if she is deemed competent and/or your brother, contests it. They would assign another attorney to represent mom if she were to contest, brother would be on his own (can he afford an attorney??) Before proceeding with seeking guardian/stewardship, see #1 above! With outside confirmation, the courts would likely skip interviewing her, if she could even be taken there in her condition.
If she is deemed incompetent by appropriate experts and that documentation is available, then there should be NO contest in court, but again, the DPOAs should be more than sufficient for mom's care, including financial, so you should NOT need to go the court route. We took over for mom with just DPOAs - no guardianship or stewardship needed. You should only ever have to go that route if no DPOA was set up, DPOA declines or is incapacitated and there is no backup. Some nosy busybody (like brother) could attempt to push for guardianship, but if you have incompetency documentation in hand and can prove via bank records that you are handling her account(s)/ property reasonably, that should go nowhere. In your case, if she is deemed incompetent, only brother is an issue and he can be dealt with in other ways.
If she is deemed competent, you could still look for ways to stop your brother from interfering FIRST before seeking guardian/stewardship, including keeping him from getting her to revoke/reassign DPOA - however, that also takes money, so he might not be able to pay for the attorney's services! If you can find a way to stop him, you would not need to go through the courts. If nothing else succeeds in stopping him, then you might have to go the court route.
Start with the competency - this will be KEY in how you will need to proceed.
If mom is deemed incompetent, skip the courts guardian/stewardship - the DPOAs provide all you need to take care of mom and her needs. In this case, what you have initially done, moving the account and making sure he does not have access to the new account information, will stop that nonsense.
Then, brother needs to be dealt with if you have proof she is not competent. Have you requested any documentation from the bank in regards to the shady behavior of your brother? They may or may not be willing to provide information that can be used. You clearly have record of the automatic draft setup your brother made - that can be grounds for elder abuse. Taking her to the bank and going that route to get around the changes made - is there any record of that other than the phone call to you? There must have been paperwork drawn up when he was there - do they still have that? Can you get copies? Just that alone combined with he is NOT DPOA and your sister IS should be proof enough that he is committing elder abuse. If not, would the person who called you about this be willing to provide a letter or testify? Clearly if he has done it once he could try it again. Although it appears that the bank personnel are aware and are helping you prevent him from making changes, you DO need to take steps to have him legally barred from doing this, as he might encounter someone at the bank who is not aware of what he is doing.
Quite clear from what you say that your brother has unduly influenced mom AND taken advantage of her. Speak with an Elder Care attorney to see if DPOA can place restrictions on your brother so that he cannot take her out of the facility. Is she in a memory care unit, which is locked down? If so, then ask facility and/or attorney what can be done to prevent this from happening. If not, find out if you can have a restraining order placed on him that will keep him out of the facility or allow only supervised visits.
As for him wanting to sell mom's place - just what does he think that will accomplish? She is not dead yet, so the funds from the sale would still be mom's and he would have no access to that either.
As for paying him off? No way - what has he done that he should benefit at all? Others said it, once Pandora's box is open, what is to stop him for asking for more? Also, any monies paid out like that *could* impact Medicaid, if you ever need to apply for it. NO WAY should he get a dime. If you can recoup the monies already siphoned out, do so. If not, there is his payout, he gets no more. Glad he is not MY brother!
Elder Care attorney IS needed, and possibly help from APS. If the attorney you consulted regarding guardian/stewardship is not an Elder Care attorney, DITCH that one and find an Elder Care attorney. If he/she is, I would still find another as clearly this method is NOT in anyone's best interest (except the attorney who will get lots of fee money!) Consult with several if you have to, consults should be free.
Hopefully mom is already beyond competency because anything you need to do legally to prevent your brother from taking advantage of your mother will be much less expensive. From your description of mom, I would lean towards saying she is not competent, but you will need appropriate third party confirmation to support you if you do not already have that. Start with that, then get all the other barriers in place.
Final note:
You said "It's painful when a parent accuses you of stealing and you only want to care for her. It's unbelievable that my own brother would encourage that delusion to benefit his own bottom line..."
I think you already understand that this is a combination of your brother's machinations and your mom's affliction. Don't take it to heart because if she were fully aware of what your brother is doing she would not be saying these things. You said in your post that she in the past did not trust him. Now she is vulnerable, and his lies are influencing her. It hurts that she says this, but the hurt is being caused by your brother - use that hurt and anger to make sure he is stopped!! Let her accusations roll off as best you can, because you KNOW they are not true!
I think ABLE does not need necessarily to be done by the individual. A parent or grandparent can set up the ABLE and put the annual max into the account for their kid or grandkids behalf. I think 14k annual with 100k maximum. Able $ excluded from individuals assets, but Medicaid is designated beneficiary. Able seems to be lots more simpler to use & defund than a Special Needs Trust. Especially for families who have some $ to place annually for a few years but not a big 6 figure to set up a SNT with investments.
For elders w/dementia or diseases of aging, ABLE cannot be done.
I have to wonder if her estate is really worth protecting if she had to get a house loan for repairs. If we are not talking about 500k or more, it might be better to invest the whole estate into a continuing care community which will continue to care for her when the money is gone.
A good estate atty can use a trust to protect mom's large estate for it to be used to take care of her. The trustee will need to be paid, but this will be cheaper than brother taking it all. I'd use a male atty as this generation is used to trusting men more than women.
If your mom was diagnosed with dementia then has she been deemed incompetent by two doctors fir handling her own affairs?
If yes then your brother's actions would be seen by the state as elder abuse. Which could result in prosecution.
Once you determine all.if that you should contact DHS or other state protective service asking for assistance to help protect her. That's their job.
Going for guardianship.
The person who mentioned that everyone has to be notified is correct. If you do that and they come to court be there with a lawyer. Do not try and handle that by yourself. Probate judges hate family contention and will take away your POA and appoint an arbitrary guardian. You don't know who it will be.
We had this happen and had to get an attorney to help get rid of the guardian. All we could do is get her replaced.
And my brother had a dpoa.
Family problems are never easy and it leads to tons of stress when it involves any amount of money, no matter how small. The greedy person will think up all kinds of tails against you so be prepared.
Buying them off will do no good either, all they see is an open purse.
In a case like yours though where someone has taken financial advantage of an elder, you now know what you can do about it (even if you can't go for guardianship). I went digital years ago and I promise you, no one is taking advantage of me! I'm not lying when I say keep it all in the bank and just go completely digital, it really works! If you go on YouTube and start learning all you can about elder financial abuse, you'll eventually cross one video where the person the elderly man is supposed to frost is actually searching his house and unfortunately it's his wallet since so many men carry wallets in their pockets. Wallets often mean cash as well as cards, but sometimes someone may also carry checkbooks. This may seem funny, but believe it or not, i've been noticing how more and more places no longer even take personal checks. I don't blame them since to many times text and up bouncing, those are called rubber checks 😂 When someone writes a rubber check, the check is delivered, and the check writer makes off with the goods not knowing or realizing until later the check has bounced until bank statements come back. If other cases, someone may know they wrote a bad check or maybe even plan to depending on the situation. I'm not saying that the big chain stores for starters don't need your money that bad, but too many people doing it will put the store under. That's probably why some small stores have gone under, they probably lost too much money to stay open. I can't tell you how much more convenient and easier it is to just ditch the checkbook and just use your debit card. When you use your debit card, only run it as credit but also set up your account from the bank to make sure you can't overdraft with your debit card. If the money in the account isn't enough to cover a transaction, the card will be declined and all you have to do is just put something back that you really don't need. This feature is handy just in case you forget to log on to your bank account before going out the door to go shopping and you may not know how much is in your account. I've used online banking for years and before heading out the door, I always always always go online to check my balance and transfer just enough money to cover a specific purchase. Anything left over gets swept back into savings on my return. At the end of the month, I sweep all left over funds into my able account. You might actually consider setting up an able account for your mom. That way, her money is better protected. You may want to shop around and see which state you want to open an able account in. Be careful though, some of them price gouged where maintenance fees are involved, I personally would not put my money there. Ohio last I knew was $2.50 each month which really isn't bad unless you really need to leave the account sit idle should you become incapacitated and your money goes missing by time you recover let's say from a hospital stay after a car accident or some other medical emergency. You don't want you're able account draining, you should be able to leave it sit idle without it draining. That's why you really want to go with A state where the able accounts are free with no maintenance fee. Tennessee able accounts are free with no maintenance fee. Another perk is they have no debit card. That way, the savings account is better protected and it's harder to take advantage of you simply because there's no debit card attached to that particular account. It is however linked to your bank account. You can link it to either your checking or savings. You then logon to your able account and set up regular automatic contributions from your end. Make sure it's an amount you can comfortably and easily afford. You can make changes any time to adjust the amount, that's good news. You can also set up sporadic random one time contributions anytime. I've been using an able account for a little while now, and I can tell you from experience that it really works. You can optionally invest if you want to but you don't have to if you set up your account just right by selecting the option that allows you to keep all of your money. This option is for those who don't have very big incomes and need to keep all of their money. I'm glad the able accounts are available since the able act was put into law because someone somewhere recognized the needs of those who would otherwise have to go without native big ticket items that would otherwise improve their quality of life, giving them a better life experience. It may be a car, moving expenses to a better place, maybe even a medication you need that your insurance may not cover. You may also need medical equipment but just can't get your insurance to cover it. That's where you're able account comes in handy if you regularly contribute because you're able account is somewhat like an emergency insurance because you save up emergency funds.
I honestly think your mom will definitely benefit from an able account. If she's still competent and can still handle her own money, you may not even need to go for guardianship or conservatorship at all, just help her straighten up things and get things on the right track. If you can get her extra money set up in an able account, the fraudster taking advantage of her will no longer be able to access it. Look at it this way, spending all of her money is no way to protect it because it's not looking out for her future needs or her best interest. The fraudster who told your mom that spending all of her money is how to protect it is full of crap! He obviously doesn't know about the recent able act that was signed into law allowing people on fixed income's to be able to have a considerable amount of emergency funds. If your mom is still competent and can make decisions, I would definitely have a talk with her and see if she'll even consider an able account.
* Without the able account, you can have only up to $2000 on SSI for starters and Medicaid says you can have $1500. Most people are going to save up to $2000 because that's the higher amount the Social Security office will let you have.
* Now, if you have an able account and you can have so much more money. The amount limit is so much higher, which gives you the opportunity to have a much better chance at a better life experience. There are qualified purchases you are allowed with your able account. If you go outside of that limit, there are penalties such as a tax penalty, so stay within the limit if you open and able account. It's very easy to stay within the limit because they give you a wide range of options including obtaining transportation. For some though, obtaining a car is near impossible because of how hard it is to get a loan if you're single and disabled and only have a small income and the car dealership requires you have double the income. I hope to one day see that change because there really are people out there who really do need transportation but can't get it. The able accounts might make it easier to start putting away money, but it may actually take years to save up what you need for a very good reliable car and that's not right when cars are already well overpriced and there are so many people out there who need them. Anyway, I hope you can get your mom's money situation straightened out and prevent any further bleeding of your mom's account. I would also go after the fraudster for the money he wrongfully spent that he wasn't even entitled to. Depending on how much it is will depend on whether or not you need small claims court or even a bigger court. I would get an eldercare lawyer involved if I were you, but get one who works on contingency. They get approximately a third if you win. The lawyer can actually help get that money back by garnishing his paycheck and taking so much from his check until all of your mom's money is returned. This is another avenue to recover the money as long as you're still within the recovery window and it's not too late. If you have actual copies printed out from the bank of your mom's bank statements, definitely get a copy for the lawyer to review but take a highlighter pen and highlight the dates. I would use different colors for different transactions to make them easier for the lawyer to follow but I would take an ink pen and circle the dates of each transaction that the fraudster made on her account. In your particular type of case, I wish you could garnish most or all of his check to let him know what it's like to have all of his money spent and him not being able to pay his bills just like your mom may have face when she had no more money left. What goes around comes around and he should face the music and be able to have his whole check go to her until all of her money is restored. That way, he knows what it's like to not be able to pay his own bills or provide for his own needs because where was your mom's money when she needed something? Yep, it was gone so he needs to face the same thing to know how it feels
Call the bar association and see if they can help you find a no cost lawyer to handle this for you.
Given the dementia diagnosis, you might contact that doctor and raise the issue of your brother's disruptive behavior, and how much it upsets your mother. The doctor might write a letter of support for a PPO, in addition to any other letters you might be able to get from other treating doctors.
One of the issues addressed should be how disruptive his behavior is and the stress and mood swings it causes her. It is NOT in her best interests for him to be in contact with her.
There's the possibility of getting a restraining order against him, given his history of violence and abuse of former wives. This isn't behavior that goes away; it's behavior that shows a pattern, and a threatening one at that.
If there's any medical documentation as to your mother's erratic (and I use that term to be explicit, not to be cruel) behavior, I think your sister, if the POA provides such terms, could apply for a PPO on your mother's behalf. That would establish the terms by which he cannot approach or contact your mother....just take him out of the picture entirely.
Has he ever threatened you or your sister? If so, you could also apply for PPOs. You might not get them as you're not in as much danger as your mother, but it might be enough to sway a judge to grant the order if she sees that he's a danger to three members of your family.
If you do apply for one, it would be helpful to includes Affidavits from his former wives as to his abuse. I'm curious: did he abuse anyone who's male, or is it always women?
You could also raise the issue of how upset your mother became after contact with him. If any of her doctors are aware of this, they might write a letter of support to be included with the PPO Petition.
To go forward with a guardianship petition, parties in interest have to be notified of the hearing. I would assume that would include both your mother and brother. That could go two ways. Your brother could appear and "make a scene", documenting his behavior, and/or your mother could become upset when he shows up.
Either way, I think you need to seriously address the issue that if either of them, especially your mother, contests the guardianship, it may be awarded to an outside party. And there goes your control, management, plans, and especially your mother's assets.
My attitude toward "professional" guardians is from seeing how some of them abused their authority and went through money like a child with candy.
Thanks for the feedback on your bank. My aunt has a relationship like that with her bank. It's good to know others are out there. It's certainly made my life easier. (But I would still document every transaction)
I think the real issue here is your mothers safety, not only her money.
Keep reading the posts and you'll see that there are some guardians who will take your mother and you won't see her again and the reason seems to be just because they can because they have guardianship.
You might be tempted to do the same to your brother once you get guardianship. You might be justified if he upsets her like you mentioned.
Being responsible for another human being is never easy. Navigating relationships with siblings can go off in the ditch when least expected. It's very awkward at times to just take right action. He's given you a heads up that he is going to use whatever means to get to her money and doesn't mind upsetting her to do so.
Also be aware that there are parents who will play one child against the other.
You are also right that she could rescind the POA at any time, not so a guardianship.
There are some courts who will take her guardianship and give it to a third party when the children can't agree.
So many sink holes on this rocky road.
The guardianship in your case sounds like a good idea. You have her self paying now. If he takes what's left and it appears she gifted her assets, you might not even be able to get her in a medicaid facility? But shop around like MACinCT suggested.
Good luck and keep us posted.