I have a rather unique situation that I could use some good input on. First off, I am my Fathers Durable POA as well as the POA for his Last Will and Testament. When we went to the Attorney's office to have him draft up all the documents, my Father's wishes were me first, then my sister and lastly my brother who is also on a separate document, the Caregiver for my Father.
I diligently watch all of my fathers accounts to assure that all of his bills are being paid, and nothing suspicious is happening with any of his 4 active accounts. Recently, my sister and I had a rather bad feeling that my brother who as I mentioned is my Dad's caregiver was possibly doing something wrong. He has a past history of gambling and running up debts in my mother and father's name. That was a few years back when my mother was alive, but for now, my sister and I know exactly what his financial situation is because of everything that was disclosed at the Attorney's office prior to making him the Caregiver. So let me jump to the actual situation at hand. My brother has the same name as my father, he's a Jr. Recently my sister and I ran a credit report on my Dad and found out that 5 new credit cards had been opened up in his name. Well after approaching my brother on this, since we knew it wasn't our 83 yr. old father who did this, our brother fessed up and said he did it. He racked up $40K in debt on the 5 cards. Now, we brought this to my father's attention and since his health issues have to do with memory conditions, he said "it's just money, we will resolve it" well as you can imagine that made my sister and I livid beyond words. My father and his brother who is several years younger 68, went to the Attorney and the Attorney who drafted up the original documents told my Father and Uncle to immediately remove me as the POA as well as my sisters name as 2nd in line.!!!! and obviously remove my brother from everything. The reasoning which I am having a hard time believing is that the Attorney indicated to my father and uncle that I could be held responsible for my brothers actions???? Although I guess I failed in some ways, I feel as though my responsibility was to watch my father's active accounts which I did and nothing was taken from those and everything was fine in that arena. Am I responsible for running occasional credit reports on my Dad to assure this his eldest son wasn't in fact doing what he was doing?? Anyway I sure could use some input on this as to what my liability is as it pertains to my brother's wrongful acts.
thank you
I can understand why you would take it personally but I don't think it was personal. If the attorney took those actions just to alleviate any family involvement in the future it might not have been such a bad idea. Again, you did nothing wrong and you are not responsible for your brother's actions, this could just be to simplify things and a proactive decision on the attorney's part to stave off any potential family problems in the future.
I did indeed email the Attorney and I asked him to clarify for me what in fact he told my Father and Uncle as it pertained to me being liable in any way. I believe and I may be wrong, but because it was my father who relayed the message to me what the Attorney told him, with my dads short term memory issues, maybe he forgot some details. But I'm hoping the Attorney could have said..."we need to immediately remove me as the DPOA in case the Credit Card Companies would somewhere down the line ever investigate this and find that Fraud by my brother took place. Now for the life of me, I can't imagine why in the hell any CC company would run an investigation into Fraud unless somebody brought it to their attention. Even if my brother decides not to keep making payments on all these debts, it will still only be turned over to a collections agency and of course ruin my father's clean credit, but they don't just randomly say "oh let's run an investigation into CC Fraud!! So, I'm very interested in seeing the Attorney's comment. One more thing that doesn't make sense either, he evidently told my Father and Uncle, we can keep me on there, we just need him to be put down to the 3rd person.???? Well WTH, that makes no sense to me. Also, why they decided to remove my sister altogether is another issue we must take up with them when we all meet. So it's a very complicated situation that unfortunately due to one person's inappropriate actions(brother) trickle's down and touches many innocent individuals.
Not to be disrespectful to the nice lawyers on AC, but my mother's lawyer was horrible. I don't want to get into it, but he did some underhanded things which have cost me a lot of money. If I was going to the electric chair, he'd be the last person I'd call if you get my meaning.
I wouldn't trust your dad's lawyer. I'd find my own. If I were being accused or it was suggested that I'd done wrong when I knew I hadn't, you'd bet I'd be protecting my ass.
Few thoughts -- I am NOT giving legal advice, and am NOT a lawyer -- just brain-storming for ideas for you to talk over with a lawyer (ideas are hopefully worth at least the price of them!)
First -- IMHO you DID do due diligence -- you caught the fraud! Maybe credit card companies can be notified not to issue credit cards to your fathers SS# . If your Dad has not yet been declared "incompetant" I don't think there is anything you could have done to prevent this except maybe notify credit card companies not to issue credit cards to his SS# due to past fraud/identity theft. While your brother has the same name, he does NOT have the same SS# , so his actions in applying for cards (and forging your Dad's name - even though it is also his name, it was on a document with someone else's SS#---same as if it were a complete stranger with the same name).
Just one thought though -- As bad as your brother's behavior is, everything is "still in the family" at this point, and no fraud has been reported, It is possible that your Dad's instinct to keep everything quiet isn't a bad idea. If there is enough $ to care for your Dad for his expected life-time your Dad has not been "harmed", he's just spending money unwisely, and what has been spent is just your potential inheritance. Until the government (APS, medicare or Public Guardian) is involved it's still a family affair. If your Dad has enough money to live on I don't know who will kick up a fuss or ask any questions other than you guys, so it may be better to ignore/prevent future problems than go through with a process of removing yourselves from DPOA (again -- I'm not a lawyer). DO consult with someone about how to prevent elder fraud (anonymously maybe?). I know there are things like identity theft alert services that could prevent future problems & there might be credit-card blocking avail.
Second thought - Consult and get a 2nd legal opinion from an estate/elder law attorney or legal aide for seniors (maybe worth paying someone who will NOT "get the client"). Not all attorneys are equal, and even if this first guy is excellent there may be a bit of butt-covering on his part since he wrote up original paperwork that did NOT protect your Dad.
Third thought - KEEP EVERYTHING IN THE FAMILY--at all costs! Uncle as DPOA, you guys again listed as 2nd & 3rd maybe? Can't see why you need to be removed from estate/will. Maybe the three of you could work together, you keep checking bills etc. & everything go on as before, but with extra protection from fraud (DPOA is NOT required to do the bill-paying, or keep an eye on the money -- a book-keeper could be hired to do the same thing). Also, just because one person is listed as DPOA doesn't mean they have to do all the work -- they just have to sign off on the papers.
PLEASE do not replace family with a professional conservator if you can possibly avoid it -- it may get offered as an "easy way out", but it is anything but "easy" and can ABSOLUTELY be as bad as all of the horror stories you read. It will cost more than the $ your brother has stolen (and yes, "stolen" IS the right word. Your brother is an addict and a thief).
OK, possible solution - I have seen creative things done in similar situation-
example; Grandson got $ out of grandpa for a new car, and conservator "deducted from his future inheritance" rather than try to get it back (money was gone). Might that be an option in this case? The $40k could be written as a loan to your brother, to be paid back from bro's inheritance (I presume the three of you are getting equal inheritance?). Make the loan terms clear that you DO expect him to repay so that the IRS can't consider it a "gift" (if there isn't $40k for him at the end then your brother will owe other heirs some $).
Maybe the "loan" could be paid back gradually from whatever your brother is earning a caregiver for your Dad? You don't say that there are any problems with his care of your Dad, & that is a HUGE deal. Even though your brother is an addict, thief, jerk, etc., the cost of hired caregivers is extremely high, and finding appropriate people is HARD.