Legal eagles: Can you help answer this? Need expert.
Question:
My brother is in Assisted Living, very mild mental impairment at age 85, but problems with balance necessitate care. His former partner and current friend is ALSO in care with dx. likely of Alcoholic Encephalopathy. He is more impaired mentally.
I manage my brother's financial Trust and Accounts, bills, etc. My brother is concerned for his former partner, who is younger than my brother, and would like to insure that he is leaving some funds for Partner's ongoing care in the event of my brother's passing as POD to Partner; he is not clear on how much the Partner has, and would like to leave his money to family if Partner is well enough funded for life expectancy.
Therefore the two of these men have gone to the Fiduciary who is managing the ex-partner's assets (Fiduciary was not court appointed, but CHOSEN by Partner with advice of lawyer 7 years ago when Partner had to enter care and could not manage his own finances); they have asked for an accounting of current assets. This has not happened despite letters. Though on the phone Fiduciary says he DOES send monthly accounting, these are not found. There have been confusing "phone calls" from the Fiduciary, saying he would send accounting to both my brother and Partner; my brother has not received. While the partner could be confused, my brother is not.
Now there has popped up evidence of a current CD of approximately 300,000, paying monthly dividends the bank assures Partner is in existence and being paid to Fiduciary, which Fiduciary has just denied existence of adamantly on the phone : "You DO NOT HAVE a CD with US BANK ".
All these problems have led to my brother and his ex-partner not trusting the Partner's fiduciary, and unable to get an answer about his ballpark assets. They are wanting to investigate all this --they are fearful that the fiduciary is not being honest, and they cannot get an answer.
How should they proceed? How can they have an accounting of assets? Must this be taken to an elder law attorney or are there steps to take first? Should they request a three way meeting with Fiduciary, Partner and my brother and a monitor from assisted living to sit in (if they feel legally able to do this; they are overall helpful). Is there anything that an Ombudsman can do about this?
I am not certain how to tell them to proceed in this. As I said my brother is mentally capable but made very anxious by all this. He has a very early Lewy's Dementia dx. and a benign brain tumor that impairs his mobility and balance a bit, but his long term memory is remarkable and his short term memory quite adequate.
Sorry this is so confusing. I am now feeling a bit dingy myself after even trying to WRITE this one.
8 Answers
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A different way to handle this whole thing would be for Brother to set up a discretionary trust naming Partner and also family members as beneficiaries. You need a trusted Trustee, perhaps yourself (NOT the same Fiduciary – keep it simple!), who can find out in due course if Partner needs support or not and use the trust funds accordingly. That will put Brother’s mind at rest about the worry he has for Partner’s future.
The issue of Fiduciary is really difficult to deal with as ‘outsiders’ to the contract between Partner and Fiduciary. You can’t sue, you can’t demand information. The right way would probably be to go to the Police or to whatever agency licenses Fiduciaries. However it is hard to ask for an investigation without better information about the facts.
I think Brother does need a lawyer, but to set up a good trust, not to pursue the Fiduciary.
My brother knows he has no standing and it was "Partner" who sent letter requesting accounting. My brother is his POA for health care. It was an offer actually by the Fiduciary to provide my brother a "copy" which surprised me in all honesty as I would have thought privacy laws would not allow for it. Likely why it never happened.
Brother has done about all he intends to do with his own Trust, his own monies, I think, which is why he asked me to manage his trust, pay his bills, etc. He now kind of decides as each CD comes up whether to make it pay on death to his trust (family beneficiarys) or to Partner (who has one POD CD already. Trying to decide disposition on death of upcoming CDs.
I hadn't thought of discretionary funds, and stipulations and it's a good idea for anyone in a like position going in to do his or her trust.
One way to force the issue of the enabling document is to advise the Fiduciary (in writing, by certified mail) that he needs to provide documentation proving that he is in fact duly appointed, AND in order to continue acting as such. The goal is to get him to realize that his actions are being questioned and he needs to first justify that he even has legal authority to do so.
This is definitely something I would have an attorney handle; someone with contested estate management, elder law litigation or similar background could handle this. The attorney should know what to write to lay the foundation for litigation, especially since I think it may be necessary.
You might also raise the issue of what would be necessary to remove this person. If he thinks he's going to be relieved of his authority, he might provide the enabling document, which is the first step.
I also agree with Tacy. Document everything in writing. You're building a case against the Fiduciary.
The partner's bills could be paid if accounts were joint. That's another thing to find out, is how accounts are titled.
Don't worry about the "blind leading the blind." This seems like a unique situation, one perhaps in which someone acting as a friend has abused that friendship, or over stepped it, but won't relinquish whatever authority he may have, legitimately or illegitimately.
I should add that unless we're attorneys (which most of us are not), we can only offer suggestions. At least in Michigan, as I understand it, only attorneys can in fact provide legal advice.
So I think I am for more soft gloves at present, myself, or at least that's my input. As an aside, a social worker at the hospital when my bro visited ALSO expressed (without doing it blatantly as she cannot do so) that this is a person hospital personnel trust to act in clients' best interests. As I said he is a Licensed Fiduciary and there are no complaints against him or his license in these years; that we could easily check. On the other hand the qualifications to BECOME a licensed fiduciary in my state are not all that much. It is my feeling that he may be acting in Partner's best interests here; partner is a bit of a histrionic mess often enough. I am honestly at this point wishing my bro would back away, as is so often his inclination. And I certainly want no part of it because I feel I have enough to work with bro now and ongoing unknown future. Hee hee. Thank you Garden Artist. Because if there is a way forward that MUST be taken, then I agree with you, that an attorney is the way to go.
I think a lawyer is the way to go. But, see what a CPA can do in getting the Fiduciaries records. Then if there is a problem, get a lawyer involved.
Will update all the caring folks when I see how this goes, where this goes, and what happens. And thanking everyone who chimes in. I love this forum and the heroic folks here who give a hang.
This would help clarify any potential answers.
Thanks!
Oh, and definitely do not involve the AL staff. This needs to be resolved legally, by professionals who know and can take the appropriate legal action, if necessary, but the AL staff should not be involved. You really don't want to grant them authority to be involved in an already complicated financial situation.
Neither of these gentlemen is capable of managing their money, which is why you manage your brother's affairs and his fiduciary manages the partner's affairs. And that being so, what kind of feedback would you expect to get from them following this kind of meeting with the partner's fiduciary and this kind of correspondence and this kind of paper trail and phone call chain to follow?
I think you'd better tell partner to arrange another meeting with fiduciary and go with him, don't you? If that doesn't get results, back to the lawyer on whose advice the fiduciary was appointed, perhaps.