My brother and myself now have joint Power of Attorney for my 90 year old mother's affairs. In her will she is leaving her money to five of us kids. One brother is not included in that because he manipulated my mother into giving him the family home when he had Power of Attorney for our mother. The home is worth three times the amount of money to be split by the rest of the family. The major part of her money is a CD which comes do in April. My brother and I were thinking of pulling the CD out and splitting the money into CDs for the five of us whom it is to come to anyway after her death. The reason is two fold; 1. when it is coming time for the CD to renew the bad brother will put lots of pressure on my mother to sign Power of Attorney back to him, 2. by putting into CDs in each kids names it must stay available if my mother would wind up in a nursing home for awhile, but also get the money away from where my brother can touch it. My brother with the house as been mentally abusing my mother since getting the house. He lets her know she is now living in a house he owns and can throw her out if he wants. So far she has resisted signing back POwer of Attorney but with the CD coming due, he will be back at his old tactics. The CD is in my mother's name. To try to head off the harassment to my mother that will be coming, do my brother and I have the legal power to take out the CD now and divide it into the CDs for the five kids to be held for my mother's care until her death?

Is your mother able to make decisions on her own? Just curious: when was her will signed?

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Originally Posted by George_1950

Is your mother able to make decisions on her own? Just curious: when was her will signed?

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Her will was signed in August of 2007 with all her family present at the Attorney's office along with a case worker from the Area Agency on Aging. My mother sometimes is very with it and the next not so much. Plus she can be very influienced by the pressure put on by my brother since she signed the house to him. I think the only reason he did not have her sign the Power of Attorney back to him yet is because he is waiting for the CD to come due. My mother gave my brother and myself POA after we were able to get records from the bank showing how they were misusing her money. The checking and savings accounts are now set up with two signatures required. Either my brother or myself will sign along with my mother. We feel this helps her keep some self esteem but we actual play her bills. She has her checkbook and writes out a check once in a while for miscellaneous things.

When my other brother had control of the checkbook he kept the checkbook with him and would have her sign many checks at once. Since the money was to go to the rest of the kids even in the older will, when any of us would ask how much money is there? My brother response would be; "It none of your damn business, I'm Power of Attorney'.

It is of some comfort to know that her will is 'up to date'. The attorney who prepared the will should be your mother's attorney, not the 'bad' brother's. It is easy to get into a situation where there may be a conflict of interests. I think you should review this with your mother and in the presence of her attorney. She should explore the idea of having the home given back to her. She needs a 'comprehensive' estate plan that deals not only with the CD's, but with the home as well. A POA is not a 'license' to take or do whatever one wants; your 'bad' brother may be considered a fiduciary of your mother and liable to return her property to her. There is no harm in your mother 'divesting' herself of her home and assets, but everyone needs to be involved to avoid the type of result you have described with regard to her home.

Powers of attorney end at the death of the person, so at her death there is no power of attorney but who will execute the estate that should be named in the will.

A power of attorney may sign for the other person if they are physcially unable to sign or not present, but can not go against the wishes of the person.

If you do there could be gift tax issues, since she is still alive. Also as POA he could not sign the home into his name without the moms permission, ifhe did, you may have her file criminal charges of fraud and a civil suit also.

I would be checking with an attorney about how he was able to get the house in his name. There may be some criminal liability here and its possible the transfer could be voided.

On the issue of the CDs, I agree that CD be divvied up into accounts with each of the heirs as joint tenants with right of survivorship. This will take CDs out of the estate and can pass directly tro the heir on the account. I would look into gift tax issues that might incur though.

I want to thank everyone for your responses. To shed some light on the information about the home. My brother had taken charge of my mother's finances four years ago after my father died. He had told the rest of us that mom had missed paying the light bill and double paid the fuel oil bill. Since his retirement he and his wife live in a mobile home behind me mom's house. He took the checkbook to his house. We didn't have any reason to think he was lying to us. This past spring after my brother got the house, we were able to get the banking records which proved he was telling us lies. A month before my mother signed the house over to him, he started telling everyone she did not have enough money to pay her bills he would show her the checkbook ledge showing almost no balance. She has said she got up, had several bills and no money to pay them so she asked him if he wanted the house because she could not afford it. Truth is she had $7,500 in the checking and $27,000 in savings.
We have shown this to our mother and it bothers her BUT she will still stick up for him. The main reason is has made it very clear he now owns the house. Plus mom never wants to admit one of her kids has done wrong. In other words she is her own worse enemy. He can intimidate her so easily.

I think you should meet with your own attorney and review your state's laws on guardianship; review the pros and cons of your mother's situation.