My first suggestion would be to have separate checking accounts opened. Are they still living at home or are they in a facility? If a facility, are they in a room together or separate? Do they each get SS and/or a pension? Each should be using their own SS funds to pay for any lodging, food and services provided. If your brother is the only one who had a pension, perhaps that could be split somehow between the two, but he certainly should not be using ALL his funds to provide for their care if SHE has funds that are available to be used for her benefit.
As I noted in another thread, if at any time you seek representative payee for SS (and any other income), they will REQUIRE reports on how the funds are used. The SS booklet specifies how the funds may be used, starting with housing and food for the beneficiary and then lists other expenses that are approved (and clearly states no fees or reimbursement for the care giver, unless they approve it.) If any/all of your brother's funds are being used for his wife's benefit, this could be a problem.
I would definitely seek advice from an elder care attorney. He/she will be able to advise you the best (legal) way to handle this. I would think that trust had been set up to take care of the wife in the event that something happened to the husband. If SIL is holding out using those funds for the benefit of the wife to ensure inheritance, she is at the least morally wrong. Move your brother's funds and monthly deposits to another account and seek out that legal advice!
I know nothing about the legalities, but it seems to me that before lawyers are brought into the picture, perhaps this should be discussed in a friendly manner over coffee at the kitchen table.
We have been divulging to each other the assets for each spouse but sister in law seems to be holding back on a TOD (trust on Death) that she wants to reserve for her relatives. Does not want this trust to be used to cover her sister in nursing home. I want it to be part of the 50/50 split of all assets, sister in law is very reluctant to share wants my brother to use all his assets first?
Wow, I understand there is a first to go thought (nursing home or beyond) which would make sense for you both. I would ask where did their income come from? It would seem SIL is not looking at the couple being a couple but as individuals. What sources of income falls under whom? If there is a Trust involving your brother and you have POA you have a right to the document. I would have your lawyer write a letter to her lawyer to further discuss just in case something shady going on with SIL.
I don't recall much about Testamentary Trusts, or TOD trusts, so I did some quick research. Unlike a Living Trust in which property and assets are transferred during the lifetime of the individual benefiting by the Trust, a TOD trust assets are transferred after death.
Still, when a TOD trust is created, I would assume that specific assets are designated, b/c otherwise, who would determine which assets are affected after death? In that respect, does the TOD trust specifically identify which assets are for the individual for whom the trust was created?
I think you could benefit from a discussion with the attorney(s) who prepared these trusts to determine what authority your SIL has. It sounds to me as if she's overstepping her bounds.
But there are some legal complexities as well in this situation. It's also important to remember that no one "has POA" over someone else. That authority is granted so that someone can act on behalf of, and in the best interest, of the individual who creates that arrangement. You and other proxies serve at the pleasure of, and are responsible to, the individual who created the POA.
I've spent some time trying to sort out the arrangement, and frankly, it's just not clear. I think everyone could benefit from discussing their individual roles with the attorney who prepared all the documents. Otherwise, I see the potential not only for confusion, but misappropriation of assets.
Get this straightened out now before anyone dies and asset distribution ends up being a contested issue.
I will add, Sister, as POA, could also clean out joint accounts. It might be a good time to have separate accounts if only to avoid accidental overdrafts.
AgingMyself, this Trust issue, who it's specifically for, who the Trustees are and similar questions are really at the crux of the asset assignation issues. Until we know more, we're just guessing.
But the OP posted 3 days ago; unless I missed a post, he hasn't been back.
As someone else pointed out, 'm not sure if you are coming back to read responses Johnboy but if you are, the more simplified answer to your original question is in most cases, yes. Now again that's the simplified answer and there may be restrictions depending on the state he is in but you are effectively him in most cases, meaning unless the checking account requires both he and his wife's signatures on checks (some do) or there is some restriction written into the POA document, you both have the authority sign checks acting as your brother (sister) and on their behalf.
That said, there is a variety of good info here based on various interpretations of the situation. There is of course info about the situation missing that has the potential to be key. But the way I read it (partly based on my own life experience of course) it sounds like perhaps this was either a second marriage or just a late in life marriage perhaps and either there aren't children at all or they just don't have them together. It also sounds like they spent at least some time thinking and talking about how to care for themselves and who to put in charge of that as evidenced by the fact they both have a POA appointed and it may very well be that they have already decided and set up for some of the things people are warning and preparing you for, though it seems like you would probably know about that if they had. It also sounds to me as though there may very well be his money, her money and their money probably because they had well established lives prior to this marriage and maybe each set up a POA prior to their marriage and that's why the 2 unconnected choices or maybe I'm reaching way to far and am way off base. Either way it sounds like you arr both kind of put in the same spot and really trying to work together. Again, I don't know how well you know each other but it doesn't sound to me like you know each other well or have spent a lot of time together by the way you refer to her. I don't mean that you sound as though you don't like her or anything just as though you don't know her very well so it says something positive about both of you that you are trying to communicate and do this together from my perspective. I so commend you both for that and strongly encourage you to try an cultivate that instinct rather than become more and more suspicious and territorial, which doesn't mean ignore due diligence or allow yourself and your brother to become doormats it just means try to stay in that "we are family" frame of mind if you can because you are both through marriage and your love for your siblings.
This trust may very well be something set up long before the marriage or set up as someone else suggested for monies inherited by your SIL and intended to be passed on or something like that which certainly doesn't mean the money shouldn't be used to pay for her care expenses or that it wouldn't have to be if she were going to qualify for government help but misconceptions or understandings about it on the part of her sister and POA may be what is causing her to be so protective of it and it may not have anything to do with greed, she may have no conception that what she is asking or doing could be viewed as selfish or unfair at all. The possibility that she has info that makes her actions perfectly understandable and thinks you have the same info is as likely as the possibility that she is purposely being less than forth coming and trying to soak your brother as much as she can and doesn't care about him or his side of the family. But she's agreed to take on the care and responsibility of her sister, just as you have for your brother so she can't be all bad and I would encourage you to do everything you can to nourish a good working relationship, seeing each other as family if you will and continue talking and working together rather than making quick moves that could be seen as aggressive, accusatory and or self serving. I don't mean to say don't protect your brother and yourself just think about how and what you do, moves that protect them both might be better than ones that serve only your brother and it seems to me the best place to start is the attorney who did the POA paperwork and the trust as well as any wills or other medical and financial paperwork that might exist. If that professional is still around they may very well be able to answer all of your questions, both of you and I would suggest going together the first time at least. You may find that your SIL (by marriage I think?) has info and questions that you know nothing about and vice versa and if that isn't the case simply including her and considering the two of you a team will go a long way toward finding a good way to do this work together which can only help. Of course if you find you aren't comfortable with this attny or what your finding out then you know sooner rather than later that you need to consult another professional as well. Better to find out and start that sooner than later.
You don't want to be doing this care taking all on your own if you can help it and they are a couple after all, I'm assuming treating and keeping them that way will enhance their lives and this experience. Anyway the attorney who wrote any or all of this up was probably privy to what their wishes are and why they set things up the way they did, what they were thinking so you can both go from there. If that or those (depending on what you find) attorney isn't available or helpful and between you you aren't able to come up with people who may have helped them and know what they were thinking/wanting, this is all assuming your brother doesn't have lucid enough times to tell you himself, then the two of you might consider going to an attorney who specializes in this area of elder and memory care clients to consult on all of this. Remember no matter how much money they have and maybe more so if there is some, there will be steps to take that are better than others and requirements for spending that money and how before getting any help with the financial needs and medical care they each and jointly need. The best moves may be different if the goal is to keep them together than it would be if just one of them was afflicted and needing AL and MC. There are ways to protect some of the assets if you do it right and while it may be too late for some of that if they haven't already planned some of that the more info you have the better decisions you can make for their immediate needs as well as long term and of course this means knowing who all the players are, what's most important and what options you have may have to consider along the way. Figuring out how the two of you (I'm back to you and the SIL now) can and should split and share the responsibility is going to be much better for everyone as time goes on then always thinking about how to best protect your brother and outmaneuver her or being at odds at all. Sharing the chores of paying living expenses (by the way your brother and his wife's funds should be used to cover any attorney expenses in case that wasn't clear) and caring for them both is going to be far better than figuring out who watches TV the most and should be responsible for the bill. Who will be accompanying them to doctors appointments? Will you be going with your brother and she will go with your SIL? Do they share the same doctors so it might make sense to take them both together? Are they currently living at home or in a facility? Will they go to a facility together or is there a preferred at home situation? I know your dealing with specific immediate needs now that had you facing a need for this original question and you are probably just starting to sift through all of these questions and more. Speaking from some experience you are far better off considering as much of the future possibilities now as much ahead of time as possible and you are far, far better off having as much help, their village, as possible and most of all having a partner in the responsibility could be a blessing rather than a curse if you treat and look at it that way.
You obviously love your brother very much and he trusts you to both care for him and those he cares for when he can't (he gave you the job and you accepted it), your SIL and her sister obviously share the same trust and love and the love and trust your brother and his wife share binds you all together, all 4 of you and makes you family. You and his SIL are really in the exact same spot if you think about it and would both benefit from having each other to lean on. Hopefully there are enough similarities or at least reason between you that you can build on that fact and the love you share for your siblings that make you family.
As I noted in another thread, if at any time you seek representative payee for SS (and any other income), they will REQUIRE reports on how the funds are used. The SS booklet specifies how the funds may be used, starting with housing and food for the beneficiary and then lists other expenses that are approved (and clearly states no fees or reimbursement for the care giver, unless they approve it.) If any/all of your brother's funds are being used for his wife's benefit, this could be a problem.
I would definitely seek advice from an elder care attorney. He/she will be able to advise you the best (legal) way to handle this. I would think that trust had been set up to take care of the wife in the event that something happened to the husband. If SIL is holding out using those funds for the benefit of the wife to ensure inheritance, she is at the least morally wrong. Move your brother's funds and monthly deposits to another account and seek out that legal advice!
I don't recall much about Testamentary Trusts, or TOD trusts, so I did some quick research. Unlike a Living Trust in which property and assets are transferred during the lifetime of the individual benefiting by the Trust, a TOD trust assets are transferred after death.
Still, when a TOD trust is created, I would assume that specific assets are designated, b/c otherwise, who would determine which assets are affected after death? In that respect, does the TOD trust specifically identify which assets are for the individual for whom the trust was created?
I think you could benefit from a discussion with the attorney(s) who prepared these trusts to determine what authority your SIL has. It sounds to me as if she's overstepping her bounds.
But there are some legal complexities as well in this situation. It's also important to remember that no one "has POA" over someone else. That authority is granted so that someone can act on behalf of, and in the best interest, of the individual who creates that arrangement. You and other proxies serve at the pleasure of, and are responsible to, the individual who created the POA.
I've spent some time trying to sort out the arrangement, and frankly, it's just not clear. I think everyone could benefit from discussing their individual roles with the attorney who prepared all the documents. Otherwise, I see the potential not only for confusion, but misappropriation of assets.
Get this straightened out now before anyone dies and asset distribution ends up being a contested issue.
But the OP posted 3 days ago; unless I missed a post, he hasn't been back.
That said, there is a variety of good info here based on various interpretations of the situation. There is of course info about the situation missing that has the potential to be key. But the way I read it (partly based on my own life experience of course) it sounds like perhaps this was either a second marriage or just a late in life marriage perhaps and either there aren't children at all or they just don't have them together. It also sounds like they spent at least some time thinking and talking about how to care for themselves and who to put in charge of that as evidenced by the fact they both have a POA appointed and it may very well be that they have already decided and set up for some of the things people are warning and preparing you for, though it seems like you would probably know about that if they had. It also sounds to me as though there may very well be his money, her money and their money probably because they had well established lives prior to this marriage and maybe each set up a POA prior to their marriage and that's why the 2 unconnected choices or maybe I'm reaching way to far and am way off base. Either way it sounds like you arr both kind of put in the same spot and really trying to work together. Again, I don't know how well you know each other but it doesn't sound to me like you know each other well or have spent a lot of time together by the way you refer to her. I don't mean that you sound as though you don't like her or anything just as though you don't know her very well so it says something positive about both of you that you are trying to communicate and do this together from my perspective. I so commend you both for that and strongly encourage you to try an cultivate that instinct rather than become more and more suspicious and territorial, which doesn't mean ignore due diligence or allow yourself and your brother to become doormats it just means try to stay in that "we are family" frame of mind if you can because you are both through marriage and your love for your siblings.
This trust may very well be something set up long before the marriage or set up as someone else suggested for monies inherited by your SIL and intended to be passed on or something like that which certainly doesn't mean the money shouldn't be used to pay for her care expenses or that it wouldn't have to be if she were going to qualify for government help but misconceptions or understandings about it on the part of her sister and POA may be what is causing her to be so protective of it and it may not have anything to do with greed, she may have no conception that what she is asking or doing could be viewed as selfish or unfair at all. The possibility that she has info that makes her actions perfectly understandable and thinks you have the same info is as likely as the possibility that she is purposely being less than forth coming and trying to soak your brother as much as she can and doesn't care about him or his side of the family. But she's agreed to take on the care and responsibility of her sister, just as you have for your brother so she can't be all bad and I would encourage you to do everything you can to nourish a good working relationship, seeing each other as family if you will and continue talking and working together rather than making quick moves that could be seen as aggressive, accusatory and or self serving. I don't mean to say don't protect your brother and yourself just think about how and what you do, moves that protect them both might be better than ones that serve only your brother and it seems to me the best place to start is the attorney who did the POA paperwork and the trust as well as any wills or other medical and financial paperwork that might exist. If that professional is still around they may very well be able to answer all of your questions, both of you and I would suggest going together the first time at least. You may find that your SIL (by marriage I think?) has info and questions that you know nothing about and vice versa and if that isn't the case simply including her and considering the two of you a team will go a long way toward finding a good way to do this work together which can only help. Of course if you find you aren't comfortable with this attny or what your finding out then you know sooner rather than later that you need to consult another professional as well. Better to find out and start that sooner than later.
You don't want to be doing this care taking all on your own if you can help it and they are a couple after all, I'm assuming treating and keeping them that way will enhance their lives and this experience. Anyway the attorney who wrote any or all of this up was probably privy to what their wishes are and why they set things up the way they did, what they were thinking so you can both go from there. If that or those (depending on what you find) attorney isn't available or helpful and between you you aren't able to come up with people who may have helped them and know what they were thinking/wanting, this is all assuming your brother doesn't have lucid enough times to tell you himself, then the two of you might consider going to an attorney who specializes in this area of elder and memory care clients to consult on all of this. Remember no matter how much money they have and maybe more so if there is some, there will be steps to take that are better than others and requirements for spending that money and how before getting any help with the financial needs and medical care they each and jointly need. The best moves may be different if the goal is to keep them together than it would be if just one of them was afflicted and needing AL and MC. There are ways to protect some of the assets if you do it right and while it may be too late for some of that if they haven't already planned some of that the more info you have the better decisions you can make for their immediate needs as well as long term and of course this means knowing who all the players are, what's most important and what options you have may have to consider along the way. Figuring out how the two of you (I'm back to you and the SIL now) can and should split and share the responsibility is going to be much better for everyone as time goes on then always thinking about how to best protect your brother and outmaneuver her or being at odds at all. Sharing the chores of paying living expenses (by the way your brother and his wife's funds should be used to cover any attorney expenses in case that wasn't clear) and caring for them both is going to be far better than figuring out who watches TV the most and should be responsible for the bill. Who will be accompanying them to doctors appointments? Will you be going with your brother and she will go with your SIL? Do they share the same doctors so it might make sense to take them both together? Are they currently living at home or in a facility? Will they go to a facility together or is there a preferred at home situation? I know your dealing with specific immediate needs now that had you facing a need for this original question and you are probably just starting to sift through all of these questions and more. Speaking from some experience you are far better off considering as much of the future possibilities now as much ahead of time as possible and you are far, far better off having as much help, their village, as possible and most of all having a partner in the responsibility could be a blessing rather than a curse if you treat and look at it that way.
You obviously love your brother very much and he trusts you to both care for him and those he cares for when he can't (he gave you the job and you accepted it), your SIL and her sister obviously share the same trust and love and the love and trust your brother and his wife share binds you all together, all 4 of you and makes you family. You and his SIL are really in the exact same spot if you think about it and would both benefit from having each other to lean on. Hopefully there are enough similarities or at least reason between you that you can build on that fact and the love you share for your siblings that make you family.
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