I am the trustee and POA for a family trust. What can I do as my mother can no longer be effective with family decisions?

Question

My 97-year-old mother has severe dementia and Alzheimer’s disease and is no longer able to make financial or personal decisions. I need legal assistance to protect her and the family estate from further risk. My father passed away eight years ago. My mother and I, along with my four sisters (ages 76 to 57), are involved in her care and the family living trust. I am the named trustee of the living trust and hold power of attorney. Since my father’s death, my mother has refused in-home or professional caregiving help. My sisters and I have rotated monthly caregiving responsibilities; some have stayed for two or three months at a time. The situation has become difficult. My oldest sister has taken a controlling role and has been difficult to communicate with. She has persuaded my mother to transfer money from the trust into everyday bank accounts on multiple occasions. To my knowledge, these funds were then used for work on my mother’s house without supporting documents, receipts, or proper authorization.

Blaine Brown · Answer

I’m sorry your family is dealing with this. Assuming California law applies, the immediate priorities are protecting your mother’s care and finances, confirming your authority to act, and determining where the transferred funds went.

The first step is to review the complete trust, all amendments, your power of attorney, and any advance health care directive. Being named as successor trustee is different from currently serving as trustee. If your authority depends on your mother’s incapacity, the trust’s requirements for establishing that incapacity must be followed. Your financial power of attorney also needs to be durable and currently effective, and it does not, by itself, establish authority to make health care decisions. Your father’s death may also have triggered separate trust shares or restrictions on certain assets that need to be reviewed.

Properly authorized repairs benefiting your mother may be legitimate expenses. The important questions include who authorized the transfers, your mother’s capacity when they occurred, whether she was subjected to undue influence, who received the money, and whether the work was actually performed. A dementia diagnosis alone does not automatically invalidate every transaction.

Once your authority is confirmed, you should obtain the relevant bank statements, transfer records, account ownership and signature information, contracts, invoices, and receipts. Request a written explanation and supporting documents from your sister, and preserve communications concerning the transfers and repairs. An attorney can help you work with the financial institutions to establish appropriate safeguards against unauthorized transactions while ensuring your mother’s care expenses continue to be paid. You should also maintain complete records of all funds you manage.

Her caregiving needs require attention alongside the financial issues. If the existing trust, powers of attorney, health care directive, and other available arrangements cannot adequately protect her, a conservatorship of the person, estate, or both may be necessary. California requires the court to find that a conservatorship is the least restrictive alternative needed for her protection.

I would recommend promptly consulting a California attorney who handles both trust litigation and conservatorships. Bring the estate planning documents, available financial records, and a timeline of the disputed transactions.

I am the trustee and POA for a family trust. What can I do as my mother can no longer be effective with family decisions?

1 answer

Blaine Brown

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