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Can a sibling take that elder with cognitive impairment and Parkinson's to create a trust in MI and revoke me from financial only. This was all done after her testing came out stating cognitive impairment and dementia with low test scores on the MMSE compared to a prior done 2 years earlier on her. It was noted she needs financial help as well. There were 2 sets of DPOA's written and executed (3 years later after the originals for me), for healthcare and financial by two separate attorney's, one set was written 1 week prior to the trust POA's. He noted on record that the trust POA's were the only ones but is using the prior trust POA's at healthcare facilities. He has taken items off the property stating they are his, and has taken a great portion of her money. Is this undue influence, elder abuse, or embezzlement, there is plenty of evidence/proof/Pics, if so what direction do you take in Michigan?

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Thank you for responding, I hope I can provide a little clarity and I am stating this well. Yes 'he' is the oldest son to my mother, and believes he is entitled. I was taking care of my mother in which I had finally decided to move in with her, when I was assaulted by him and ousted a year later. My mother was his 'witness' in this event. My mother stopped talking to my siblings and me thinking we were stealing from her. Before the assault she had a nueropysche test done stating impairment, etc. as mentioned. I quickly filed petitions for GA/CA being her patient advocate designation in one document which stated her wishes and also another document 'Healthcare Personal Representative' which states it is Durable, non springing and I was to make her medical decisions for her from that day forward. In addition to both of these was my DPOA for financial. (3 documents total). During the time of all this cash was taken out of her account $1000/cash each time (my parents added me to their joint account prior to my father's passing to help assist). And yes there were 2 sets of DPOA's written for financial and health by 2 separate attorney's. The lawyer that drew up the trust, whom is disbarred for ethics and stealing from trusts, since you are from Oakland county, you may be able to find this attorneys background. Also exactly 9 days prior to the trust being written and executed and DPOA's written by this trust attorney, the other DPOA's we're written and executed. Please note this trust, deeds sent to be recorded, DPOA's we're all written and signed in 1 day, the exact same day I served my mother with paperwork for the petitions?. Yes, my brother is using the healthcare DPOA from the earlier execution and financial DPOA from the trust/DPOA's, which the "trust/DPOA's would have been the most current. My mother had an attorney write a revocation only for financial which was in an exhibit. The GAL's report stated I was the oldest daughter, etc. In which it is wrong. The police report states my mother called, but the investigative summary states "my aunt" which should be "my daughter". The former attorney provided documentation showing the trust was created 3 months prior. One of the checks for cash written was written 2 months prior and not cashed until the day the other attorney revoked me. (Checks cleared all around that check #) When I was locked out I took video of him taking the farm tractors, etc. I have made prior police reports while living here, to the fact of him taking them, he even returned some, to in fact take them again. Another former attorney who worked under this Trust lawyer told me her original trust was in a storage locker. My brother left his fee agreements here, at my mother's, and $4000 went to fighting my PPO, in which I have the cancelled check. My mother paid for his son's traffic tickets, court hearings, etc.
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Mugsy, greetings from a fellow Michigander. Let me see if I can understand your situation, w/o being critical.

1. "I am a healthcare personal rep with non springing powers and POA not affected by disability".

In Michigan, a Personal Rep is the individual designated to handle an Estate, the designation being made in a Will. This person used to be called an Executor or Executrix. A Personal Rep has nothing to do with a health care directive, sometimes called a Living Will.

If you have authority to make health care decisions, it would be pursuant to a LW, or other document executed by your mother to make those decisions, under various specified medical conditions. It has nothing to do with financial or legal decisions, which would be authorized under a separate Durable Power of Attorney, which typically isn't subject to springing conditions.

2. "Can a sibling take that elder with cognitive impairment and Parkinson's to create a trust in MI and revoke me from financial only." Few issues here:

a. If a person has cognitive impairment, it would have to be determined at what level and if that would in fact interfere with her ability to make legal decisions. If significant cognitive impairment exists, an attorney should ask enough questions to determine whether or not the individual is able to make the decisions necessary to execute a trust, or make other legal decisions.

An attorney can rely on physician's statements, and this might be the first question asked if an attorney suspects some cognitive issues.

I've always thought this is somewhat of a misnomer because many people who are competent or even quite intelligent can't understand legal decisions. I can't myself, especially when reading a complex court decision. So how can an elder understand all the complexity of a trust?

b. A Living Trust doesn't have anything to do with revocation of POA or DPOA powers. It doesn't address that at all.

c. The only way your authority under a DPOA can be revoked is if your mother executes a new, replacement DPOA, which specifically states that it revokes "any and all previous DPOAs."

3. "There were 2 sets of DPOA's written and executed (3 years later after the originals for me), for healthcare and financial by two separate attorney's, one set was written 1 week prior to the trust POA's. "

Why were there 2 sets written and executed? Do you mean a health care POA and a separate financial/legal POA? Or two sets of each? Did either of these 2 subsequent documents rescind the earlier ones? Why were two separate attorneys involved? Still, they're separate from the Trust and don't affect it. But they could create questions as to which of the 3 (?) documents is the effective one.

4. "He noted on record that the trust POA's were the only ones but is using the prior trust POA's at healthcare facilities".

a. I'm lost. Who is "he"? Noted on what "record"? Unless Michigan laws have changed, there are no "Trust POAs". And how does the "prior Trust POA's at healthcare facilities" factor in? I'm not even sure what this means. If it does mean that two different POAs are used interchangeably....well, I'm not even sure how to respond to that, but I can't believe that any attorney would even consider something like this.

There can't be different sets of POAs used interchangeably.

b. If this is a Living Trust, and I'm assuming it is, the person who creates it (your mother) would be known as the "Settlor". Typically, she would also be the Trustee, but it's possible that another person could be named as Trustee.

This does not change until your mother passes. Then the Successor Trustee assumes authority that the original Trustor had.

4. "He has taken items off the property stating they are his, and has taken a great portion of her money. " Again, who's "he"? Is this the sibling you referred to?

If so, two issues apply: when the trust was executed, it should have been "funded", which requires retitling assets into the name of the Trust. If your brother, is he stealing from your mother's property, and are you sure she didn't give me permission? Is he taking from assets that were in fact retitled into the Trust?

By any chance does your brother live with your mother?

What evidence do you have of his taking money? I'm not challenging you, but a lot of people post here making similar allegations but they're based on suspicion. If you have documentation, go to the police. If the DPOA issues can be straightened out, you can go to banks or other businesses at which you've used a DPOA and make sure that he hasn't executed any new signature cards to put him on her accounts.

5. You do state that there is "plenty of evidence...". The direction you should take is straight to the local police. You can also contact the Elder Law of Michigan Agency and ask for free legal advice on behalf of your mother. If she's income qualified, you can get about an hour's worth of good quality advice.

6. What pictures evidence elder abuse? Is this a separate issue from the financial issue? Is your brother physically assaulting her? If so, contact the Michigan APS, be prepared to present them with photos, and ask them to intervene.

7. If there are issues between you and your brother, and APS recognizes this, it may recommend a guardianship and/or conservatorship, in which control might be taken away and awarded to an institutional guardian or conservator.

This could be problematic, especially in Oakland County as I've heard on newscasts that there are significant problems with these actions and with improperly qualified people being awarded care and control.

Sorry to be so lengthy and perhaps obtuse, but it's necessary to understand the situation before offering suggestions.
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Reply to GardenArtist
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