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My brother is in Assisted Living, very mild mental impairment at age 85, but problems with balance necessitate care. His former partner and current friend is ALSO in care with dx. likely of Alcoholic Encephalopathy. He is more impaired mentally.
I manage my brother's financial Trust and Accounts, bills, etc. My brother is concerned for his former partner, who is younger than my brother, and would like to insure that he is leaving some funds for Partner's ongoing care in the event of my brother's passing as POD to Partner; he is not clear on how much the Partner has, and would like to leave his money to family if Partner is well enough funded for life expectancy.
Therefore the two of these men have gone to the Fiduciary who is managing the ex-partner's assets (Fiduciary was not court appointed, but CHOSEN by Partner with advice of lawyer 7 years ago when Partner had to enter care and could not manage his own finances); they have asked for an accounting of current assets. This has not happened despite letters. Though on the phone Fiduciary says he DOES send monthly accounting, these are not found. There have been confusing "phone calls" from the Fiduciary, saying he would send accounting to both my brother and Partner; my brother has not received. While the partner could be confused, my brother is not.
Now there has popped up evidence of a current CD of approximately 300,000, paying monthly dividends the bank assures Partner is in existence and being paid to Fiduciary, which Fiduciary has just denied existence of adamantly on the phone : "You DO NOT HAVE a CD with US BANK ".
All these problems have led to my brother and his ex-partner not trusting the Partner's fiduciary, and unable to get an answer about his ballpark assets. They are wanting to investigate all this --they are fearful that the fiduciary is not being honest, and they cannot get an answer.
How should they proceed? How can they have an accounting of assets? Must this be taken to an elder law attorney or are there steps to take first? Should they request a three way meeting with Fiduciary, Partner and my brother and a monitor from assisted living to sit in (if they feel legally able to do this; they are overall helpful). Is there anything that an Ombudsman can do about this?
I am not certain how to tell them to proceed in this. As I said my brother is mentally capable but made very anxious by all this. He has a very early Lewy's Dementia dx. and a benign brain tumor that impairs his mobility and balance a bit, but his long term memory is remarkable and his short term memory quite adequate.
Sorry this is so confusing. I am now feeling a bit dingy myself after even trying to WRITE this one.

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Thanks for your posts, which make me feel better. If we’re on for a chat, I don’t think the site could monitor ‘bush lawyers’, so a ‘perhaps’ post is probably the best option for comments. My work favourite bush lawyer was the Public Officer of a migrant Association (responsible here for filing Annual Returns with the Department) who was convinced that he had the right of veto over all Management Committee decisions. On this site I’ve questioned ‘no doubt you can challenge this will’ (yes of course you can but the result will probably be just legal costs for you), and various other recommendations to sue. There is often a difference between the letter of the law and reality. It may be ‘illegal’ to hide guns belonging to father with obvious if undiagnosed dementia, but the chances of being prosecuted, convicted, and fined or sent to jail are very low, irrespective of the letter of the law. Likewise putting a catch on mother’s door at night to keep her safe. It’s a worry when people are told that X has a POA and can push them around, when no-one has ever seen the document (so possibly it’s imaginary). It also bothers me when people are recommended to go and get very expensive professional advice for something that is really basic common sense – not everyone has the money to waste. Lawyers can write letters and accountants can add up bills, but it costs less to do it yourself first. I’ll try to be even more careful about saying that you should check your own local situation, but most of the basics (including common sense) are world wide. I take comfort in the knowledge that even if I make mistakes, I’m certainly not the only one. I do my best!
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In view of some comments here and on other threads, I should explain. There are two basic legal systems in most western countries, one based on English common law and early statute law, and the other in Europe and some USA states, based on the Napoleonic code (eg community property). Most of the US, like Australia, is based on the first, particularly in basic issues like witnessing wills. Most law reform these days involves looking at what has been enacted or considered in comparable jurisdictions (and what problems there have been), so there is also a fair degree of consistency in what gets enacted in current law as well as in the basic stuff. So yes of course I know that my local experience may not be correct in the USA, but in offering it I think about whether it is an area likely to differ (eg tax or Medicaid) or whether the basics are a good place to start. Our site doesn’t have a lot of lawyers (or even accountants) offering advice, but has a lot of bush lawyers saying what they think the law ought to be. It has seemed to me to be worthwhile to provide what information I can. I do think it’s important to put a brake on the bush lawyers, prosecution threats and imaginary POAs we hear about. However if that is going to be dumped on, perhaps I ought to stop. Margaret McKenzie LLB FCCA
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MargaretMcKen Aug 4, 2019
I don't think that I have ever posted on payroll laws, but I take your point. I put it all clearly on my profile, but perhaps I should make it clear post-by-post. Thanks for the advice, Margaret
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I want to thank everyone for ideas. Some of them are fabulous, and hope they will help others, as well. Will update if any further actions taken or if anything learned by me going forward.
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MargaretMcKen Aug 1, 2019
Alva, Brother doesn't need to amend his current trust, he needs to provide for a discretionary trust in his will. I can appreciate him not wanting to 'muck about with this stuff any more', but if he is going to "leave some funds for Partner's ongoing care", his only other option besides going to a lawyer is just to leave you more money (actually give it to you now, no need for a will change) and hope for the best. Perhaps if you can give him a simple option it will be easier for him to go along. Best wishes, and good luck!
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It is Partner who has hired the Fiduciary, and he is the one who should be writing (or at least signing) any letters to or about him. Brother has no standing to make any requests.

A different way to handle this whole thing would be for Brother to set up a discretionary trust naming Partner and also family members as beneficiaries. You need a trusted Trustee, perhaps yourself (NOT the same Fiduciary – keep it simple!), who can find out in due course if Partner needs support or not and use the trust funds accordingly. That will put Brother’s mind at rest about the worry he has for Partner’s future.

The issue of Fiduciary is really difficult to deal with as ‘outsiders’ to the contract between Partner and Fiduciary. You can’t sue, you can’t demand information. The right way would probably be to go to the Police or to whatever agency licenses Fiduciaries. However it is hard to ask for an investigation without better information about the facts.

I think Brother does need a lawyer, but to set up a good trust, not to pursue the Fiduciary.
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AlvaDeer Aug 1, 2019
It's a great idea, Margaret,the discretionary Trust, and I have spoken to my brother about the possibility of going into HIS lawyer and amending his current Trust. He doesn't want to do it. Initially at least 5,000 in his neck of the woods to walk in the door to redo the Trust, almost certainly more. I am currently Trustee of his Trust. It is quite simple Trust, easy for me and would be easy on his death. I am 77; for me it needs to be simple. My daughter follows me and curdles her blood to even think of. But I appreciate that idea, and think it an excellent one in which you want to provide for someone "if".......
My brother knows he has no standing and it was "Partner" who sent letter requesting accounting. My brother is his POA for health care. It was an offer actually by the Fiduciary to provide my brother a "copy" which surprised me in all honesty as I would have thought privacy laws would not allow for it. Likely why it never happened.
Brother has done about all he intends to do with his own Trust, his own monies, I think, which is why he asked me to manage his trust, pay his bills, etc. He now kind of decides as each CD comes up whether to make it pay on death to his trust (family beneficiarys) or to Partner (who has one POD CD already. Trying to decide disposition on death of upcoming CDs.
I hadn't thought of discretionary funds, and stipulations and it's a good idea for anyone in a like position going in to do his or her trust.
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Alva, just a few more thoughts now.  And thanks for responding to my inquiries.

One way to force the issue of the enabling document is to advise the Fiduciary (in writing, by certified mail) that he needs to provide documentation proving that he is in fact duly appointed, AND in order to continue acting as such.     The goal is to get him to realize that his actions are being questioned and he needs to first justify that he even has legal authority to do so.

This is definitely something I would have an attorney handle;   someone with contested estate management, elder law litigation or similar background could handle this.   The attorney should know what to write to lay the foundation for litigation, especially since I think it may be necessary.

You might also raise the issue of what would be necessary to remove this person.  If he thinks he's going to be relieved of his authority, he might provide the enabling document, which is the first step.

I also agree with Tacy.  Document everything in writing.  You're building a case against the Fiduciary.

The partner's bills could be paid if accounts were joint.  That's another thing to find out, is how accounts are titled. 

Don't worry about the "blind leading the blind."   This seems like a unique situation, one perhaps in which someone acting as a friend has abused that friendship, or over stepped it, but won't relinquish whatever authority he may have, legitimately or illegitimately.

I should add that unless we're attorneys (which most of us are not), we can only offer suggestions.   At least in Michigan, as I understand it, only attorneys can in fact provide legal advice.   
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AlvaDeer Aug 1, 2019
I think I may have misled on the fiduciary. He is a person who, in this small town is one of only a few licensed fiduciaries. He is often court appointed. Anyone at banks that my bro spoke to in the last 7 years admires him. In the 7 years acting for Partner he has certainly not seemed to have mismanaged any funds, because funds would not still be there after so long in Asst Living if he had. So he is not a personal friend. At this point the "boys" as I will call them now, are hesitant to go in gangbusters all flags flying actually for hear that Partner has an excellent fiduciary who may say "Hey, I am close to retirement and this isn't worth it. I quit. I resign. " as there are as I say then only a few more in this town to choose from. Partner's family is somewhat estranged and would almost CERTAINLY be in it for the money, so you can see the problem.
So I think I am for more soft gloves at present, myself, or at least that's my input. As an aside, a social worker at the hospital when my bro visited ALSO expressed (without doing it blatantly as she cannot do so) that this is a person hospital personnel trust to act in clients' best interests. As I said he is a Licensed Fiduciary and there are no complaints against him or his license in these years; that we could easily check. On the other hand the qualifications to BECOME a licensed fiduciary in my state are not all that much. It is my feeling that he may be acting in Partner's best interests here; partner is a bit of a histrionic mess often enough. I am honestly at this point wishing my bro would back away, as is so often his inclination. And I certainly want no part of it because I feel I have enough to work with bro now and ongoing unknown future. Hee hee. Thank you Garden Artist. Because if there is a way forward that MUST be taken, then I agree with you, that an attorney is the way to go.
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I agree a lawyer is needed. Now the partner has some cognitive decline the Fiduciary maybe dipping into partners money. He would have no problem in providing an accting if he was on the up and up. Actually, he should be doing it yearly anyway.

I think a lawyer is the way to go. But, see what a CPA can do in getting the Fiduciaries records. Then if there is a problem, get a lawyer involved.
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AlvaDeer Aug 1, 2019
Joann, he claims (on the phone) that he is sending monthly statement to Partner. However, my brother cannot seem to find it anywhere. When my brother told him this he said "Well, do you want me to send it to YOU as well this month" and my brother said "Yes, please". And it didn't come to my brother. When the two guys called the bank together after discovering this 250,000 CD the banks claimed is there and the Fiduciary claims doesn't exist the bank indicated slyly that the Fiduciary is an excellent one (small town and only 5 of them there and everyone seems to agree on this). I agree with the wise one below who said "Too much on the phone" and black and white is needed. With me 400 miles away and one fellow here quite impaired, the other fairly competent but made so anxious by stuff he will suddenly say "I really don't want to do anything about this at all; it is too disturbing" but them coming back disturbed a month later it is almost a sort of run-away, run-away moment.
Will update all the caring folks when I see how this goes, where this goes, and what happens. And thanking everyone who chimes in. I love this forum and the heroic folks here who give a hang.
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Alva, perhaps I'm just a big foggy this afternoon, but wonder if you could clarify something.   What document appointed the recalcitrant person Fiduciary?   Was it a DPOA, or some other agreement?   And if so or if not, are there any other granting agreements in existence and in effect?

This would help clarify any potential answers.

Thanks!

Oh, and definitely do not involve the AL staff.    This needs to be resolved legally,  by professionals who know and can take the appropriate legal action, if necessary, but the AL staff should not be involved.   You really don't want to grant them authority to be involved in an already complicated financial situation.
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AlvaDeer Aug 1, 2019
Thank you. I think great advice on the Senior Living Staff, and I did warn my bro that they almost certainly would refuse to get involved with any of this. I think the problem we have here is that as stated above it is difficult to know exactly how and as what the Fiduciary is working. When Partner went in he was much more well than now and I believe he did hire Fiduciary, but to pay his bills there would have to be a POA involved. So first they need I think they need to get to attorney and see exactly how and as what he was hired, and to request an accounting. If they choose to pursue it. But again, the blind leading the blind there. This likely should be put into the hands of an elder law attorney. We all know the kind of money we are talking there, but there are times it has to be spent.
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It isn't confusing at all - well done! - but there is one obvious technical hitch.

Neither of these gentlemen is capable of managing their money, which is why you manage your brother's affairs and his fiduciary manages the partner's affairs. And that being so, what kind of feedback would you expect to get from them following this kind of meeting with the partner's fiduciary and this kind of correspondence and this kind of paper trail and phone call chain to follow?

I think you'd better tell partner to arrange another meeting with fiduciary and go with him, don't you? If that doesn't get results, back to the lawyer on whose advice the fiduciary was appointed, perhaps.
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AlvaDeer Aug 1, 2019
CountryMouse, I cannot go to the city in which they reside to meet with them and the Fiduciary. That is why I was thinking elder law attorney. Or intervention by the Assisted Living Staff to be there while they ask their quesitons. I am 400 miles away and not young myself, tho I try to get there twice a year. Now my brother IS competent to handle his money at this time and could easily do so. He CHOSE not to and asked me if I would do it. But he is competent to do so and adjudged competent for all his care, any medications, etc. The Lawyer who suggest the Fiduciary is not "well liked " by either man, but that was MY suggestions as well; I don't see another recourse as he will have all the records of hiring him on and he is the Fiduciary used by him. I am with you on the two of them having a meeting with fiduciary with one uninterested party sitting in to hear it, as my brother with his diagnosis could be called into question just as the Partner can be. The feedback I get from my brother about these things is pretty spot on. Problem is that it all makes him quite anxious, and he fluxuates between "I am not going to have anything to do with any of this anymore. It's all too much. It's why I asked YOU to do this, to remove a burden from me, and now I am in the midst of it with EX Partner!" Actually that is my feeling exactly.
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