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My brother put his name on my mother's savings account. There is over 50K gone which he used for himself. She still has 75K left in savings, rents an apartment, and owns no other assests (currently lives on SS).

My mother ended up taking his name off the account after noticing the money was disappearing. Some of the bank withdrawal slips appear to be forged. I don't want to press charges but I'm worried of what will happen if she needs NH care within the next 5 years.

I need to speak with my sister also to see if either of us wants to become DPOA. I'm afraid that if one of us now does this we could be liable for future NH bills if we are disqualified.

Not sure what to do or how to protect her. Thanks

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Hmmm, I think figuring out the various banking streams will make you loco.

Give some thought to getting a forensic accountant to put together a report on mom’s finances for the past 5 or maybe 7 years. Specialist CPA work. Finding one maybe sticky. The pit bull divorce attys will have some they work with & regularly. I’d ask your elder law atty as to who those attys are and call for a forensic accountant referral.

Plus You can use the forensic report for the guardianship hearing.

So is it morphing to missing money involves both Brother & mom’s actions?
Thank goodness your dealing with this now while mom still has 75k to get proper legal & accounting done & in advance of any Medicaid application.
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Just a reminder Mom is easily confused so until I will not accuse anyone of wrong-doing.

Bank records are not adding up. I have my mom's net worth from savings/checking accounts prior to bro having himself involved in her finances.

Here's what I have. Bro closed her savings and checking accounts and opened new ones with his name on them. A few months later a 40K insurance check was deposited into one of her accounts.

This account was drained over time by electronic transfers, personal checks, and withdrawals (i am guessing bro was trying to hide money from Gov?). Some of this money was going directly into bros checking account and some into mom's other account. Mom was told she needed to keep her finances low.

When mom complained about not having money in her account bro put the money back into her opened account but was 40K short (appr insurance check amount). When Sis asked Bro about this he said he never knew the insurance check was deposited. I didn't notice either until I reviewed all records so maybe mom put it in without telling him.

There is a second issue that has occurred. Since the time bro put the money back suspicious withdrawal transactions were being performed over a number of months. Mom denies making most of these withdrawals and I know she didn't need the money. Maybe she is confused and was taking the money out and hiding it or maybe someone else has coerced her into taking the money out.

According to Mom she eventually spoke with a bank branch officer and they said it appears suspicious and suggested she open an investigation. I am planning to speak with the branch manager myself to find what their practices are for withdrawaling money or what my options are for following up on these transactions. Maybe a teller has some insight on this also.

I will not be able to get to that bank for a few days. I really hope this is all an honest mistake. Mom may have pulled the money and is hiding it somewhere too. I believe we will have answers I'm just not sure when.
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Ok, I must have missed reading that detail. Thanks for pointing it out.
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CroweM - majority 50k 2016; but apparently some 2017 as well.
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How many years ago did your brother take this money and when did he stop?
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I guess I'll let inform of the the potential consequences of his actions in regards to "look-back". My appointment with the attorney is next week. Maybe it's best to let this soak in a few days before making any decisions.
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Maybe you should ask him about the money in a neutral, "I'm sure you didn't realize it but..." kind of way, allowing him to save face and pay up? Of course you'll be watching him like a hawk from now on but perhaps there's a way to capitalize on the fact that most people think of themselves as "good people", not thieves who would rob their own mother, etc. Then if that doesn't work, bring out the big guns. Good luck!
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I think you mean a certified letter.

Perhaps your brother thought he knew what he was doing, based on " I heard that" advice. He wouldn't be the first person who tried to avoid paying for qualified legal advice.

Good brothers are a rare commodity. If you can reach out and set him straight, try to do that.
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After speaking with multiple banks today it is clear at least some of the monies and withdrawal slips were likely forged/embezzled.

I think my brother's initial intentions were to pull small amounts to not trigger suspicion and hide money for whatever reason. There were also a number of times where money was clearly spent without mom's approval.

Mom says she would be happy to get half back and she is going to call him and ask him herself. This won't help with the medicaid issue.

I would just like to send him a notified letter stating he either returns all of the money or to expect a subpeona to court. I don't care if I ever have a relationship with him again but I also don't want him to get in trouble legally. this sucks
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Sharon - just make sure you do not let yourself get legally entangled in the looming Medicaid transfer penalty clusterF. I’ve been on this site for about 6 years now and over & over it comes up that dpoa views parents assets as theirs and clueless as to what dpoa fiduciary duty is. For a long time, I felt that SS “Representative Payee” program was just overreacting by SS, but not so anymore. After the “how do I get paid” to caregive as question #1, it’s “my brother / sister took parents $” question as a close second on this site for financial issues. 
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Dale - the lookback starts the day that Medicaid is applied for.

And yes that’s the rub.... so in order to be eligible for Medicaid they need to be basically impoverished. That’s usually 2k in non exempt assets for a widow or widower. So say they went into the NH Jan last year and now March this year are down to their last 2k, so dpoa files Medicaid application. The lookback goes from March 2018 to March 2013. And back in 2014 mom closed out 2 10k CDs and nowhere in her bank statements do they show up as a deposit. So Medicaid can do a transfer inquiry on these. If you can’t find something reasonable that $ went to (signed over to pay for new roof) then a transfer penalty will be issued. 20k at $170 any R&B is 117 days of ineligibility before Medicaid will pay. The sticky is that she’s already impoverished and in a facility. They get penalty notice from Medicaid too. So someone in family will have to private pay for her care if she is too continue to reside in the NH. Otherwise NH can issue a 30 Day Notice & either she moves out and into one of the kids homes or if it’s ignored then APS is contacted to get an emergency ward of the state done. Guardian appointed and they are in charge. Stuff like this snowballs as guardian - as they are court appointed- can have APS do an investigation on Brothers taking advantage of a vulnerable adult, embezzlement, whatever and go to the mat in charges against him. You could use this as leverage in dealing with Bro.....

For my mom’s Medicaid application, I had to turn in a on bank letterhead and signed by bank officer itemized listing of all accounts closed within the past 5 years. Mom had CDs & Tbills, and as they expired instead of rolling them over, they went into her main checking account. So the letter read like CD#12345 $5678.00 expired 1/11/10 deposited 1/11/10 into checking account #98765 $5678.00. If there had been 1 MIA I’m sure there would Le have been a transfer penalty inquiry. Really all their financial will surface eventually as it’s tied into their SS# and between that and Medicaid having their awards letters they know what their housing/Living situation is and have a formula as to how much $$$ they should have available as spend down resources. That 50k mia will surface. 
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Unfortunately I know your pain. I wish someone would have set me down long ago and explained how Medicaid works. Siblings helping themselves to what is theirs but not knowing the rules and penalties and now we have no money and a big mess. Medicaid wasn't even on the radar when we began this journey, and although I have become more familiar with it siblings refuse to listen. I know mom is ineligible but they are planning on applying anyway.
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Dale, CM and I are asking you the same question. Why do you think that your brother misappropriated funds?

My brother was mom's POA and is the executor of her estate. He and my SIL are well to do. His name was on mom's bank account.

Yes, they have two fabulous houses, several nice cars and give to charity. With THEIR money. I never for a minute think/thought that anything was not on the up and up, because we trust my brother and his wife. If mom had said " I think P is stealing my money, look, here's my statement, where is all my money?", I would have called my brother and asked how he wanted me to answer her. Not suspected him.

Has your brother given you reason for mistrust? How are mom's bills getting paid?
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I am following up with the banks and attourneys today.

Just to clarify, if the majority of money was "removed" in 2016. If mom makes it until 2021 then the larger amount of money will not be counted? In other words (over the 5 year mark).

I'm pretty sure mom is not going to want to pursue legal action. My sister and I will also be talking today. Thanks
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Oh dear, I'm afraid of being simplistic again, but... Have you tried asking your brother?

The thing is. Your brother's using your mother's money without her knowledge but with the consent implied by her having given him access to her account is one thing, a civil matter. But forgery isn't. It is a crime. You wouldn't be suing him, he would be prosecuted. And being prosecuted for forging your elderly mother's signature and robbing her would not sit well with being the kind of respectable upright citizen your brother otherwise seems to be.

So surely, in fairness and to avoid unpleasantness, the first step would be to get the bank statements and related paperwork together, call him, and go through it all?

It's not impossible, is it, that your mother's understanding of what took place is incomplete and he will be able to satisfy you that nothing untoward went on? For example, he may have tried to explain to her about spending down AND at the same time have been settling bills for her, all the while trying to soothe her anxieties about her dwindling funds. You do need to know - and it's not a rude question - exactly where the money went.

Reassure your mother that it all just needs clarification and no one is accusing anyone of anything, and then see where you get to.
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I believe the 5 year lookback starts from the day you apply for Medicaid. You should hoist know that some states are talking about a 7 year look back.

I think it's worthwhile to investigate what happened to mom's money, especially if there is a possibility that it wasn't brother defrauding her.
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I am following up with the bank. retrieving paperwork today, speaking with sister, and looking for an elder att. today over recent events. 

Just to clarify, if the majority of money was "removed" in 2016 but small amounts were removed 2017-2018 the look-back still only goes 5 years? So if mom makes it into 2021 then 2016 is not counted? I can ask today, I just like to understand first. Thanks
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Igloo is the one who can confirm the accuracy of your understanding, but it looks right to me.

Mom has to be the one who decides who is POA and how she wants her money handled ( I'm assuming she is of sound mind).

What does your brother say about the money?

You don't want to accuse him falsely, only to find that mom is doing something weird with her funds ( sending money to African princes or cat shelters). Don't laugh...It happens. Folks who seem totally with it suddenly accusing one of their kids of stealing money, getting the siblings riled....ask your brother directly what's going on.

If he's been siphoning off funds then reporting him to APS and the cops is probably the right thing to do, even if mom won't press charges. You want there to be a record that funds were stolen.

Whatever the outcome, your mom needs her funds secured so that they are not so easily accessed. How are they currently held? Have you thought about a CD ladder? Make sure you talk to her bank about putting a fraud alert on her accounts and think about freezing her credit through the three big credit reporting agencies.  Run a credit report to make sure no accounts have been opened in her name.
  
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My brother and his wife both make good money but have to buy the best of everything. There is probably more money missing than I know of. I don't know why they would do this when they don't need it.

There were also many bank withdrawals that were taken out with what I believe are forged withdrawal slips (going to the bank tomorrow to find out). 

"Penalty only can be placed once they have applied for Medicaid as the date of the Medicaid application starts Day 1 of the 5 year look-back which discovers the transfer".

So, you cannot apply until you exhaust your savings?
Then you apply and it starts Day 1 of the 5 year look-back?

So, if she became sick 4 years from now but is able to pay out-of-pocket for 1 year then she would now be beyond the 5 year look-back for my brother's expenditures?  BUT, if she becomes sick 3 years from now, only has money for 1 year and needs to apply, the penalty comes into play?

Correct on the above?

Either way I may need to contact Adult Protective Services but am def contacting elder attorney and looking into poa. I am also requesting to see a copy of her current will.
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Dale, perhaps one of the things the Elder Attorney can do is convince your brother to return the stolen funds to avoid prosecution. You say he "didn't need the money". So where is It? Does he suffer from addiction?
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Dale, it will not be pretty no matter whichever approach is taken.
The transfer penalty is basically a math (division) problem; each state has a specific daily rate paid to the NH for room & board costs - this is the divisor. Average is about $170 a day. The amount gifted is divided by this figure. So 50k in a $170 day rate state is 294 days of ineligibility. Penalty is by # of days.

My understanding is that the Penalty cannot start until they have applied for Medicaid and would be eligible if not for the penalty. That’s one of the real stickies in dealing with penalty. It can’t include the months they are amidst their spend down (like your mom has 75k in savings so she can’t apply till she’s at the 2k mark for nonexempt assets).Penalty only can be placed once they have applied for Medicaid as the date of the Medicaid application starts Day 1 of the 5 year look-back which discovers the transfer.

There have been others on this site who have had this situation. What might be a way is for you as new dpoa to contact APS to run an investigation on brother as dpoa taking advantage of a venerable adult. He as dpoa was not doing his fiduciary responsibility. It’s something for your mom to discuss with the atty.
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You wrote "this went on from 2008 until 2012." The good thing is that was 6 years ago and thus escape the 5 year look back.
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Sorry for I was still typing while you were posting. Thus, I said some things that didn't need saying. I'm glad you will consult with an elder law atty this week. If the lawyer is willing to write up a new durable POA for that meeting then your mother would need to go with you to sign it and have it notarized. Yes, you will lose your brother but you will save what remains for your mother. 

Yes, money spent on atty is a justifiable expense. What is your mother waiting for. She should contact a lawyer tomorrow and go make you or your sister or one of you and the other being a secondary back up durable POA.

I think your brother could also be charged with negligent behavior concerning his mother's money as her financial POA.

Get the durable POA changed as quickly as possible while she is still competent to do so.
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cmagnum thank you so much, you've been of great help.

I am going to consult with an elder law attorney this week. Unfortunately I believe my relationship with my brother will be non-existent when this is all over. :(
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My brother is a POA (my mother wants to change this). I'm not sure if he was medical, financial, or both. This sucks that I could get penalized because my mother doesn't want to sue my brother. I'm almost thinking about talking to someone about elder abuse.

One more thing, I'm assuming money spent on an attorney for this is a justfiable expense so that's not included in the look back? Thanks
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If she goes into the NH before the 5 years is up, then you will likely have to pay back the 50 k for her in the NH until the penalty time is over. Possibly, you could find a nursing home in which she would basically spend the 75 in one year, if that would help you get past the 5 year look back and then apply for medicaid for nursing homes who do take people in on Medicaid pending understand the process could take some time and will take the back pay that Medicaid would pay back to the date of applying for coverage as I understand it. 

If you are your mother's durable POA and she is not able to, you just might be able to sue your brother. If she is competent though, she will need to be the one pressing charges I believe. You really need to ask her if she wants to press charges. BTW, who is the durable POA?
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What happens after the spend down of 75k?

Would this now mean we would either need to pay back the 50K or care for her at home until the penalty time is over?
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I'm trying my best to know what to do now too. My brother talked Mother into giving away her money to avoid 5 year look-back. This went on from 2008 until 2012. She was helping me out when I was in business and took sick. He demanded equal. Several of Mother's Grandchildren got on the bandwagon also. Mother is 100 year old now. Brother blamed me for the giveaway while he was coaxing her to give her money away as long as there was plenty in it for him. Brother is insisting that she (and I as full time private caregiver) stay in a very expensive Senior Facility at her expense and she wants to move out. He thinks she does not have long to live. She could outlive both of us. He doesn't even know her or see her. He got the money and moved to Florida. He doesn't call or see her more than an hour a year. She is Trustee of her account, not him. If she becomes incompetent he and i are supposed to be joint Trustees. Without that taking place, he has used his closeness with her stockbroker to shut Mother and myself out of decision making. Praise the Lord that Mother's thinking and health is so improved. we have found a sympathetic attorney recommended who is thinking like we are thinking.  The Attorney agrees that Mother is competent and brother who has usurped mother's decision making should be out of life planning for Mom. He made bad decisions in the past for Mother regarding Health Care when I was and still am the POA of Health Care.  She almost died.  God is in control and with God at the helm, Mother has regained her health and her mind.  There may be other obstacles in the way as a result of the dysfunction in the family that we will have to undo, but what Mother wants is for her, I and our Kitty to go to mine and my son's house( son works in the area and his wife and he stay there about 50% of the time with an apartment closer to her work, 50% of the time). The money she has can be used to support herself where she can live with her loving family.  Her Grandfather lived to 106 years old.  She could easily live to that age.   Don't give up.  It is not impossible.  One thing I have learned is that the person who has POA of Health Care needs to also be the POA of Finances, because control of money in the wrong hands can be a disaster for the Loved One. Do what is best for your mother.  Mother is like your Mother.  As all the S hit the fan, she wasn't in any condition to take any action, she was never a fighter.  With the confusion leaving her she wants brother to be a son and not ever be in a position again to manipulate her life. 
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My mother is 78. My brother told her she needed to keep her finances low so he was taking money out. He was taking money out without her knowledge.

I don't think she wants to press criminal charges. It sucks my brother was taking all the money and my sister and i will have to pay it back if/when she enters a NH and he didn't even need it.

Can my sister and I sue my brother for the money and lawyer fees? I don't see how this is going to end well. :(
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Your mother is the one who must decided to press charges or not since he robbed her.

If she needs to go to the NH within five years, she will first of all need to spend down her 75K in savings. Since your brother's name was on the checking account at the time he took the money, it will probably matter if he signed those withdrawals or if he forged your mother's name on them. If her name appears on them and she need medicaid by that time, they will consider it a gift from your mother to him and her application will be postponed until the sum of the money he took is paid on her care.

As financial or medical POA, you will not be liable for future NH bills unless you sign something that says you will be responsible for payments.

Also, you both need to talk with your mother about who she would like to give POA to and let it be her decision for she is the only one who can give it. Have a lawyer draw it up so that it agrees with your current state laws regarding it, have her sign it and have it notarized.

Also, what is the state of your mother's health? Most importantly, what is the state of her mind? Is she competent to conduct her own business in a business like manner?

Also, pray that your mother does not need a nursing home any sooner than past 5 years from when your brother took that money or you will likely have your hands full.

I am so glad that we can edit our responses!
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