By coincidence, this happened a week before Mother’s Day.
“I never thought my life would come down to this,” Sharon said. She was an 85 year old mother explaining her fears. She was sitting in a dark leather chair in my law office.
Sharon had told my law clerk she needed my help to protect herself. “I have worked all my life since I was sixteen. No one ever handed me a dollar for free. I helped all my children by paying for their homes and even a couple of divorces.”
“You are a good mother, but I how can I help you?”
“And now this is my reward.” Sharon had not heard my question.
She continued, “My children want to take control of my money and house. It sure looks like they want to move me into a home.”
I asked, “Why would they want to do that?”
Sharon was waiting for someone to ask her that question.
“Simple. I figured it out. Once I am in a home, they can then divide up my money. They can then split the proceeds from the sale of my house.”
Powers of Attorney
“They told me I can’t stop them since I gave them a power of attorney. Can you protect me from my children?”
As a lawyer, I knew I was hearing only one side of the story.
“Sharon,” I asked, “Can you prove any of these things?”
“My children say I have dementia. Nobody will believe me. What can I do?”
“Well, the first thing is to fix the problem. Do you want to make a new power of attorney? Who would you trust if not your family?”
“That’s funny. My children have been a disappointment. I feel really bad admitting that to you, but I no longer trust them.”
I asked, “What if we arranged a family meeting to discuss your concerns? But before we do that I must make sure you legally can change your power of attorney.”
Sharon asked, “Why wouldn’t I be able to do that?”
I explained this to her in detail:
“If you have dementia, it may affect your memory and ability to make legal decisions. I can arrange to have an expert assess your capacity to make financial decisions.
Otherwise, your children may go to court. They can ask a court to declare your new legal documents invalid and claim they must be allowed to protect you from yourself.
A judge would listen to both sides of this case. You want to prove you are not paranoid or incapable of making financial decisions.
- You can name a trust company or a professional to act as your attorney.
- You are not required to name your family members.
- Ensure no one will be in a conflict of interest acting as your attorney.
- Your power of attorney can stipulate that you can afford to stay in your home.
- You can require your attorney to spend your money to keep you in your home. This condition can appear in your power of attorney.”
Sharon was happy she did not have to name her family as her attorneys. She could cancel the powers of attorney and make new ones. She did not trust her family to control her money.
Is your family any different than Sharon’s?
I am reminded of this quote:
– Happy families are all alike; every unhappy family is unhappy in its own way. Leo Tolstoy, Anna Karenina
I have a number of posts about powers of attorney on my law firm website. The most recent is entitled:
About Edward Olkovich
Edward Olkovich (BA, LLB, TEP, C.S.) is a nationally recognized author and estate expert. He is a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of Executor Kung Fu. Visit his website, mrwills.com for more free valuable information.
© Edward Olkovich 2013