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Old 07-10-2012, 12:15 PM   #1
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Legal Recourse for Unfair CG Load

Okay; I'm petty and mean... But it is REALLY griping my behind that my brother with his three college degrees, my SIL with her four college degrees, their grown daughter with her two college degrees, and another working on her first college degree, not only do not have gainful employment (j-o-b-s), but cannot -- with all their leisure time -- cannot lift a finger for my mother, yet will inherit (according to my mother's will) half of whatever is left, if anything; should she die tomorrow, it would be close to a half million dollars including the property, although I'm working hard to spend most of that on caregivers now. Did I mention that I work a full-time job that runs up to overtime (up to 16 hours a day) during the busy season and that I MUST work to get my pension/benefits (just a few years away)? Yet my brother, lazing around the house as usual two miles away, couldn't help out in an emergency today; "I told you I wasn't going to help." HOW can I keep these trashy people -- my relatives -- from inheriting a penny of Mom's money???

There has to be a way... And I KNOW I'm not the first to wonder!

 
Old 07-10-2012, 12:27 PM   #2
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Re: Legal Recourse for Unfair CG Load

Get in touch with an Eldercare attorney. It will all depend on what your mom's will says, whether she has a trust, etc. Do you have a copy of her will?

Are you her Power of Attorney for financial issues?

Last edited by teteri66; 07-10-2012 at 12:29 PM.

 
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Old 07-10-2012, 12:39 PM   #3
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Re: Legal Recourse for Unfair CG Load

Quote:
Originally Posted by teteri66 View Post
Get in touch with an Eldercare attorney. It will all depend on what your mom's will says, whether she has a trust, etc. Do you have a copy of her will?

Are you her Power of Attorney for financial issues?
No trusts... Just everything she has at the time of her death split down the middle, fifty-fifty, even-stephen... My mother was always very big on being FAIR with us both; well, guess what? The work distribution is far from "fair" now! Did I mention I also manage rental property -- my own home, in which I cannot live because Mom needs me to live in order to care for her there?

She was, as far as we know, competent when she made this will, so I'd have to contest it. Now I must take more time off work and pay an attorney, too?

As for POA, she had a "springing durability" which necessitates two physician statements that she's "currently" not competent to handle her own affairs... I DID get that back when she was in the nursing home (rehab) in order to wrestle any control back re: inappropriate medications she was being given.

The bad news is: the DPOA names us BOTH "co-agents" who "must agree by mutual consent" or the POA is null and void. I guess I'm lucky (?) he's even allowing me to spend her money on caregivers, as he wanted her in the SNF.

What a mess! Four lazybutts living lives of leisure (I can only assume my SIL's mother, who is even wealthier than mine, is supporting them) while I kill myself essentially trying to work three full-time jobs, doing none well.

Although I'm doing BEST at taking care of Mom (despite brother's skepticism), I am proud to say... But the injustice of the situation is eating away at me!

 
Old 07-10-2012, 03:35 PM   #4
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Re: Legal Recourse for Unfair CG Load

So charge her for what you are doing - going rates, and collect now rather than when she passes. Most parents won't favor one child over another in their will. It just isn't a common thing. Who you leave things to is based on how you feel about them, not how they feel about you. I know it seems not right but that's the reality of it. I'm not trying to be harsh but to be realistic. The situation is what it is. There is no way to get the will or POA changed at this point. You need to move beyond that and do what you need to do and can do for yourself.

 
Old 07-10-2012, 03:37 PM   #5
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Re: Legal Recourse for Unfair CG Load

You need to consult an attorney in your home state, but my guess is that you're probably going to be told that you don't stand any chance at all of breaking your Mom's will just because of your perceptions of unfairness, that your brother doesn't need the money as much as you, or that you deserve it more.

I agree with Titchou's posting, and that you have to move beyond this. On the one hand, you talk about his lack of involvement and on the other hand, you've rejected all of his wishes for your Mom's care and have belittled the amount of time he does spend with her compared to your own commitment. It sorta sounds like you need an intervention to help you get some perspective to deal with family, caregivers, etc. with less anger (although I'm sure you don't have any time for that with all of the responsiblities on your shoulders.) There are obviously many things that you can't control right now.

You could consider talking to your brother and an elder lawyer about establishing a written caregiver contract that lets you get paid something now for the services that you are providing. The money that you would get paid would reduce the estate that would be divided in half after she passes. The money you would be paid is going to be taxable.

The written caregiver contract is necessary for various Medicaid reasons, which may or may not be applicable in your Mom's situation. it helps to eliminate any concerns that the monies were taken out of her estate improperly, and ensures that you and your brother are in agreement. It helps to reduce an estate for Medicaid eligibility down the road, if the payments are an appropriate valuation of the services provided. You can find a lot of information on-line about written caregiver contracts.

Last edited by Beginning; 07-10-2012 at 03:59 PM.

 
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Old 07-10-2012, 07:24 PM   #6
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Re: Legal Recourse for Unfair CG Load

As for contesting the will... you can check with an attorney but you might as well give up on that idea. If mom was competent when she made the will, nothing that happens between you and your brother makes a grain of difference in what happens after her death. Fair or not, that is the way it is.

But you can have the attorney write a care giver contract paying you a reasonable amount for the work you do for Mom now. Brother might not like it but it is legal.... and will have nothing to do with the POA. It is a care giver contract just like the one with the agency. In my opinion... spend it all!!

Love, deb

 
Old 07-11-2012, 06:15 AM   #7
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Re: Legal Recourse for Unfair CG Load

I second Deb's suggestion. That was what I was going to say. Draw fair compensation for your efforts. Bill the estate/trust/whatever by the hour, with a pre-determined hourly scale. Also bill whatever incidentals you might be incurring towards her care, such as mileage, drug/grocery store items, etc.

You can get reimbursed immediately for your expenses and your work, but mom's finances may not be as easily liquidable to be able to compensate you this way, and it might not work towards her best interest.

Else the amount can be placed as a lien against mom's future estate, so that the your claim can become part of the overall claims that must be settled before her will can be executed.

Do consult your attorney. Keep a better than good, honest record on this, with attorney oversight. If your hourly claims are straight and reasonable (e.g. reasonable charge by hourly, reasonable numbers of hrs), then it should hold up in court of law if contested, which I am sure it might be if sufficient amounts are involved. If the court perceives your claims as excessive or greedy, then you may be denied. So be more than fair and be more than reasonable.

Your siblings are also entitled to log their hours as well. And they can claim their hours to the same hourly scale as you. Also be aware that your siblings can petition that your current housing expenses are counted towards your compensation for caring for Mom, which is also fair.

Last edited by Luau; 07-11-2012 at 06:19 AM.

 
Old 07-11-2012, 06:33 AM   #8
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Re: Legal Recourse for Unfair CG Load

You should pay your Mom's care from Mom's bank. Anything that has to do with her care should be paid from her money. If you are the personal caregiver, you should try to get some fair payment/salary from Mom if you need money. This part may need the advice of the home care people who know the market value of the caregivers.
My late FIL paid everything on his own and we helped him to get the money and etc. My husband being the POA and trustee helps a lot. As a family trustee, we didn't get money for our trips and shopping for my late FIL. We did many trips to see him and spent lots of money. At least my late FIL paid his own nursng home and expensive home care given his pension and investment.

Now about the wills. I lately learned from my sister that she designed for her kids to get even shares even though her sons are not equal in terms of work status (quite opposite actually almost like work vs nowork.) She did say she has to make it even because they are both her kids. This has nothing to do with how they care for her or how many times they see her and etc. You are counting on Mom deciding how to give money based upon how they care for her. It does not work that way. Whatever the brother does, he is still her son so he gets the other share. Parents who have kids do this to be fair because they have kids with equal love and pain at birth.
Even if Mom should "dump" one kid, it is up to her when she knows what to do. Now she cannot do that anymore. The kids cannot protest against the will like that unless the sibling does something very criminal and etc.

Regards,
Nina

 
Old 07-11-2012, 06:41 AM   #9
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Re: Legal Recourse for Unfair CG Load

On a personal note, my mother is 92 and becoming more frail every day. Right now, she is living with my brother, and has 24/7 in home "nanny". In her will, her estate is divided 50-50 between my brother and I. However, to compensate my brother, she is paying my brother's household expenses. She pays for the "nanny" help, of course, and this person also does light housework such as cooking, light cleaning up, watering plants, taking out trash, etc for the house. It seems to work, but my brother and I are unusually close in terms of ability to work together.

 
Old 07-11-2012, 07:49 AM   #10
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Re: Legal Recourse for Unfair CG Load

Sorry the rest of the family is not supportive!

The obvious advice is to consult with an eldercare attorney. ONLY they can tell you what is feasible in your state.

You should be aware that there are legal and morally legitimate arrangements that can be made to compensate a caregiver. These include home arrangements and payments for services, etc.

But you must do them through an attorney and they must be completely transparent and on the up and up, it must be fair, market value, etc. You must keep track of everything, paper trails, etc. in case you get called upon to justify things. You can NOT just start paying yourself as you see fit. You must also keep detailed records of everything in case someone decides to call you on it.

Remember that POA, springing or otherwise has a strong moral obligation as well a legal fiduciary responsibility. The fiduciary responsibility must be of the highest order. Any whiff of the person acting for their own financial benefit - even in situations that are patently unfair - could open them up to a suspicion of elder abuse. Tread carefully because it can be easy to "spin" things to make a POA look bad if not everything has been perfect.

Your mom's will presumably was made a while ago. Had she known there would be dissension she might have done otherwise. However, she is no longer of sound mind to change it.

Contesting a will is extremely difficult and can also be expensive. Especially if your grounds are that they didn't do enough to help you care for your mother the way you preferred to do it and they're selfish and lazy and if only Mom could see this now you are just sure she would change it.

Meanwhile the other side comes back and says well all along we thought it was better for her to go to a nursing home even tho it would use the money but she wanted her at home and we think it it was so she get more of the money or prevent us from getting it.

So I would say good luck with that, there is about a 99 chance of her will standing and a pretty big chance of you not coming off too well if the scenario were spun that way and for sure the other side would spin it against you that way and worse.

Actions a POA takes to preserve an estate after the person is properly cared for would usually be considered to show fiduciary responsibility, wheras actions taken to change the distribution of money which "has the appearance" of favoring himself while disfavoring others could be suspect.

For example, a person moves into their parent's home to caregive and gets a trust in the house, then proceeds to spend half the person's money to completely renovate the house - not acceptable. They do they same and spend a little to add handicap accessibility - acceptable. Only an attorney and accountant can tell you what is feasible in your state.

Sadly, a person DOES have to be concerned about appearances when it comes to these matters. It does not matter who is right or wrong, you have to make sure there is no appearance of anything wrong. Getting all emotional and furious that anyone would call your motives into question does not enter it.

It is definitely legitimate to request whatever arrangements are possible in your state to be compensated for what you do and to spend whatever you need to spend on your mom's care. Even if you spend every last penny, if you do so legitimately, in accordance with the law, and without the appearance of wrongdoing, that would be acceptable.

To look for ways to prevent her legitimate heirs - be they angels of mercy or lazy trash that do not lift a finger for her - I think that is a very gray area and I would be very cautious of expressing it or taking actions upon that motivation. It would definitely cast a shadow of doubt on the motivations of the person looking to do so.

Overspending unnecessarily is also not in accordance with the principles of fiduciary responsibility. You do not know how long your Mom may live and what her other requirements might be. To spend it unnecessarily merely to keep it away from others is not justiable and might not pass a Medicare application review if ever that became necessary. Obviously it is possible to spend a lot of money on caregiving even without the intention of overspending but that is something else you need to keep in mind.

Furthermore, we do not really know for sure how someone would change their will. Some people feel their will should reflect their feelings; others feel it should be even no matter what. So strong is the precedent for equal division that if a person does not want it that way that most lawyers will usually advise they use strong language to make the intentions clear. Some people in my own family were like that - even tho one child did everything for the parent and the others nothing, that parent said to the other kids, sorry, you did so much more but it is all still divided equally because you are all my children. So, you never really know what a person would choose to do.

I do not mean to sound harsh but I think you need to step back and remember that in any situation involving money, lawyers and dissension, things can get spinned very harshly on both sides. If you think I sound harsh, you can trust that what the other side threw at you in a legal battle would be a hundred times harsher.



Quote:
Originally Posted by all4mom View Post
Okay; I'm petty and mean... But it is REALLY griping my behind that my brother with his three college degrees, my SIL with her four college degrees, their grown daughter with her two college degrees, and another working on her first college degree, not only do not have gainful employment (j-o-b-s), but cannot -- with all their leisure time -- cannot lift a finger for my mother, yet will inherit (according to my mother's will) half of whatever is left, if anything; should she die tomorrow, it would be close to a half million dollars including the property, although I'm working hard to spend most of that on caregivers now. Did I mention that I work a full-time job that runs up to overtime (up to 16 hours a day) during the busy season and that I MUST work to get my pension/benefits (just a few years away)? Yet my brother, lazing around the house as usual two miles away, couldn't help out in an emergency today; "I told you I wasn't going to help." HOW can I keep these trashy people -- my relatives -- from inheriting a penny of Mom's money???

There has to be a way... And I KNOW I'm not the first to wonder!

 
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Old 07-11-2012, 08:15 AM   #11
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Re: Legal Recourse for Unfair CG Load

I very much like the caregiver contract suggestion -- it seems like my only recourse and also seems "fair" -- and I duly understand that it has to go through an attorney and be all legal-eagle to hold water; I will definitely make an appointment as soon as possible!

Just a few points of clarification:

As for "belittling" my brother's contributions and "rejecting" his ideas, I was absolutely satisfied with the arrangement UNTIL I wanted Mom to come home from rehab early... At that point, he announced that -- if I pulled her out then -- he would withdraw all help (at that point, he was continuing to be her caregiver for 6-7 out of 24 hours, which was actually okay with me; it allowed me to work nearly full-time with peace of mind, and I knew Mom was both well cared for AND happy to be with her "sainted son"; fine by me). However, even though I allowed her stay the FULL rehab period (until she was kicked out for noncompliance), he STILL withdrew his help when I brought her home. He wanted to dump her there for the rest of her life (she was miserable, not "adjusting," and being mistreated IMHO). Sorry! We didn't go to all the trouble of saving her life just for that.

At any rate, I felt I upheld my end of that bargain as I understood it and he reneged...

So he now "visits" exactly 1 1/2 hours per day and, yes, feeds her a little dinner (she eats for pleasure only); he won't name the hour, so I can't plan even chores around it (although he's sitting home all day, along with the rest of his family), and I'm not "allowed" to leave the premises in case she has to potty or I'm otherwise needed.

As for me needing the money more than him? Uh, no! I am the fiscally responsible one in the family (and otherwise responsible, now that I think about it) and am quite well off through my own efforts and self-discipline alone. HE is the one facing bankruptcy and constantly broke. Well, that's what happens when the whole family refuses to w-o-r-k!

In conclusion, love the idea of the contract and also concentrating on what I CAN do; thx!

 
Old 07-11-2012, 09:03 AM   #12
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Re: Legal Recourse for Unfair CG Load

Good girl! You only have control over certain things and those are the ones you should concentrate on. Let the rest go....God or the devil will handle them!

Let us know what the attorney says.

 
Old 07-11-2012, 10:19 AM   #13
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Re: Legal Recourse for Unfair CG Load

An important question: can this be retroactive (say, to the day Mom left the rehab, now over a month ago)? If not, I'd better get me to an attorney posthaste!

 
Old 07-11-2012, 11:29 AM   #14
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Re: Legal Recourse for Unfair CG Load

You'd have to ask the attorney. And most likely your brother will have to agree to all these changes as he also is on the POA. So, you really need legal input ASAP.

 
Old 07-11-2012, 12:00 PM   #15
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Re: Legal Recourse for Unfair CG Load

Quote:
Originally Posted by all4mom View Post
Just a few points of clarification:

As for "belittling" my brother's contributions and "rejecting" his ideas, I was absolutely satisfied with the arrangement UNTIL I wanted Mom to come home from rehab early... At that point, he announced that -- if I pulled her out then -- he would withdraw all help (at that point, he was continuing to be her caregiver for 6-7 out of 24 hours, which was actually okay with me; it allowed me to work nearly full-time with peace of mind, and I knew Mom was both well cared for AND happy to be with her "sainted son"; fine by me). However, even though I allowed her stay the FULL rehab period (until she was kicked out for noncompliance), he STILL withdrew his help when I brought her home. He wanted to dump her there for the rest of her life (she was miserable, not "adjusting," and being mistreated IMHO). Sorry! We didn't go to all the trouble of saving her life just for that.

At any rate, I felt I upheld my end of that bargain as I understood it and he reneged...

So he now "visits" exactly 1 1/2 hours per day and, yes, feeds her a little dinner (she eats for pleasure only); he won't name the hour, so I can't plan even chores around it (although he's sitting home all day, along with the rest of his family), and I'm not "allowed" to leave the premises in case she has to potty or I'm otherwise needed.
Dear All4, I do understand your frustration and anger in feeling unfairly treated in all this. Please forgive me for saying this, but it really sounds like there is a huge component of difference in opinion between your brother and you over how to render the best care for your mother. From what you have written, I got the feeling that he thinks Rehab or NH is the best for mom while you feel that your mom is better cared for at home. Perhaps there is a better rehab or home for her? Are you the one unilaterally insisting that she stays home?
However, you are now growing resentful that it is too much work. Quite understandable. It is probably more work and time than you can handle, emotionally and physically. Nevertheless, it is unreasonable to expect brother to also increase his time/energy commitment because of a unilateral decision by you.

Again, forgive me if this comes across excessively harsh. I know that you are not going to like what I am saying. It seems this started off as a sibling squabble over how mom should be cared for. While it is fine and good to draw some sort of compensation for extra efforts since these efforts prevent you from other employment, this squabble now has the sound of a fight degenerating into a squabble over inheritance money... and your poor mother is not yet dead.

Over all this, please don't loose perspective. While I do understand that you are angry that you got the short end of the stick. Please do make sure mom's care does not play second fiddle to these squabbles.

 
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