By Quentin Fottrell, MarketWatch
My father was always fair, but a bit of a pushover. He had a great career as a computer engineer, was retired, divorced my mom, lived alone in his home and developed dementia 10 years ago.
My sister made herself his power of attorney without consulting me or my brother. I didn’t find out until I did a public-record search on his property three years after the dementia diagnosis. She also signed a reverse mortgage on his property. I was stunned. I talked to my dad and he said did not do this.
My father’s lawyer said he wouldn’t do anything about my complaints unless my father initiated it. My sister made it difficult to see him or talk to him, and watched him like a hawk. She installed a camera and she moved down the street so, if visitors like myself went to his house, she would show up immediately.
‘My father’s lawyer said he wouldn’t do anything about my complaints unless my father initiated it.’
My sister maintained secrecy. Her son moved into the house without paying rent and developed a drug problem. He went to rehab, which must have been expensive since he had no job and no insurance. I hate to think he may have stolen my father’s insulin syringes to use for his drug habit.
Two years ago my father passed away. In the weeks leading up to this, my mother told me he “wasn’t well” and was “in a nursing home,” but she didn’t know which one. I frantically called dozens in the area, but I couldn’t find out. It was distressing and sad.
My father’s attorney said he now represents my sister, not the estate. My mother said this lawyer — our cousin — also mishandled my father’s 401(k), losing it all. The lawyer said it was lost in the stock market crash. The will said my sister is the executor of his estate. But it was signed and written after he became ill. My father’s will left everything equally to each of my siblings, but it also said gifts didn’t have to be distributed equally.
My sister refused to tell us how the cash from the reverse mortgage was spent. My father had a good retirement income. Over $435,000 was spent in the six years before his death from the reverse mortgage. The lawyer said if my father were in a nursing home during that time he would have had nothing left.
‘My father’s will left everything equally to each of my siblings, but it also said gifts didn’t have to be distributed equally.’
The house was sold and the proceeds split. I can’t help feeling that my sister did not hold up her fiduciary duty as power of attorney, and gave it to herself because my father was so frugal.
My sister had no job, and no income other than her boyfriend’s income. But her boyfriend and her son must have six cars by now. Her boyfriend is from another country and works in construction. I fear they sent money overseas when his sister evidently visited at one point. I know my sister feels her boyfriend is entitled to top dollar for his work and most likely bilked my father’s estate on home repairs.
What should my brother and I do? The estate hasn’t closed yet, I think, but she isn’t talking.
The time to act is now.
There’s something fishy about your father’s lawyer’s reluctance to take any of your concerns seriously. It’s time to hire another lawyer, contact your father’s bank and file a petition with the probate court to replace her as executor. Your father’s bank accounts may be empty, but I would freeze those, and any other retirement and life insurance policies too. You can go through mail at your father’s house, with your mother’s permission, and write a list of all of the banks and insurance companies with which he did business.
It’s always more difficult to retrieve money that has been pilfered from an estate or, in this case, when an elderly parent’s home is used as an ATM. If $435,000 was spent on your father’s nursing-home care, there should be a paper trail for that. You may also decide to report your father’s lawyer to your state’s bar association, if he does not cooperate and/or continues to leave questions unanswered. As you say, a power of attorney has a fiduciary duty to act in the best interests of the individual and only make investments with his/her permission.
Don’t ruminate on this situation. There is a statute of limitations on wills, and the clock usually starts ticking after the will has been filed with the probate court. It may be a case of restoring some kind of justice and fairness to this process, and holding your sister accountable, rather than being able to claw back the money that has been drained from your father’s estate, assuming it was done so in a nefarious manner.
Your father cannot act on his own behalf in a legal manner if he suffered from dementia. His lawyer knows that. Your sister knows that. As does every court in the land.
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<STRONG> <EMPHASIS> <STRONG>Quentin Fottrell is MarketWatch’s Moneyist columnist. You can email The Moneyist with any financial and ethical questions at firstname.lastname@example.org</STRONG> </EMPHASIS> <STRONG>. By emailing your questions, you agree to having them published anonymously on MarketWatch. </STRONG> </STRONG>