Question: My mother is 90 years old, has memory loss issues and is pretty frail. She has been in assisted living since 2003. She has three children and one has her power of attorney. My mother has not been handling her own business affairs since 2003. During that period, the son with the POA has made major decisions independent of the other two children and sometimes against their wishes. He will give us yearly statements from the accountant. Overall my mother seems well cared for at the Assisted Living facility and as happy as can be expected. My mother has a sizable estate of over a million dollars. I have been reading about POAs and discovered that things like gifts are not within the scope of the POA. How much authority does the POA have to make decisions about the use of my mother’s funds? Since at her passing my mother’s estate will be shared among the three of us, my sister and I feel that we should have some input into matters that effect her funds. Are we wrong? How can we force our brother to include us?
Answer: This type of question comes up frequently and the answer depends upon the details of the Power of Attorney document that your mother signed back when she had capacity. Each state has its own standards with regard to the construction of durable power of attorney rights, but even within that variation, it depends upon what the lawyer who drafted the agreement did or did not include. If your family was my client, I would advise your brother that it is always best for the person who is serving as POA to be as transparent as possible in performing his duties, but in the end of the day, it is up to that person (the POA) to manage your mother’s affairs in accordance with the POA document and his best judgment. While you can’t “force” your brother (the POA) to include you and your sibling in decision-making regarding your mother’s affairs, you can request that he does so. Perhaps you can suggest that the three of you hold a family meeting (either in person or by phone) to discuss things. If you are concerned that the POA will refuse or that the conversation might quickly become unpleasant, you might want to suggest that the POA engage an objective third party to facilitate the meeting. This person’s fees would be paid for either from your mother’s funds or equally by the three of you. The third party could be the attorney who drafted the original agreement, another attorney, a family transition coach, or any other neutral party with skill and experience in such situations.
Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida 34108