DPOA in depth; can my Mom call the lawyers to get an understanding of what she signed without my sister being notified?

You need to get a copy of the DPOA document.

With mom, call the lawyer and ask for it.

Start there. Others will be along here with more advice shortly.

Bumping up

It is your mom's lawyer and your mom's POA and the powers are granted to sister by your mom. As long as mom is still competent she can meet in confidence with her lawyer to discuss and/or change her POA at any time... if the lawyer discussed any of this with sister it would be a huge breach of confidence. (Is there some reason you distrust this lawyer?)

edit: I have to add that although you can call to make the appointment this has to be directed by mom, a competent lawyer will not allow you to be part of the process because that could be seen as you exerting undue influence. However you still could be included as a second ear after all the pertinent facts have been discussed.

To answer the first question, yes your mother can contact HER lawyer to ask for a copy of HER document without your sister's knowledge or approval.

Quite apart from anything else, unless your mother is legally deemed incompetent her DPOA isn't in effect anyway. Your mother is free to cancel it, if she wishes, come to that (I'm not recommending she does so, note).

But if you are going to treat your mother with due respect as an informed consenting adult, then the very first message to get her to take on board (as nicely as you possibly can) is not to be so wet and so idiotic as to sign a document she doesn't understand.

Be that as it may. The other immediate concern is your father's care plan, and how it is to be managed financially. Your sister has DPOA for him, and let's assume that is in place now. Your sister has a duty to explain to your father and to your mother, in terms that they can grasp, what the plan is. If your mother has questions and is anxious, your sister must answer them as well as possible. Your mother doesn't like to disturb her when she's just been so unwell? Sorry, but too bad: if your sister is not able to act on your parents' behalf, she shouldn't hold DPOA.

Is this actually about concerns that while your sister is nominally DPOA it is in fact your BIL who is doing the work, and your mother is unhappy with that idea?

I don't know of any lawyer's office which does NOT charge quite cheeky fees for the simple copying and forwarding of documents, though; and if you also want the lawyer to spend more time on explanations, that will cost a lot more.

The simplest thing, if perhaps not the easiest, would be to ask your sister to let your mother have a copy of the DPOA. She shouldn't have any reason to object to this, or not to do it. But would your sister instantly assume that actually it's you who wants to see it? And would she also assume that you're out to cause trouble?

Also: did your sister and BIL pay for this legal work to be done?

My sister and BIL first asked me to pay $3,000 for the papers to be drawn up and I refused then they had my mother pay and low and behold it wasn't $3,000 after all it was around $2,000. My sister and BIL have claimed bankruptcy themselves several times and do not know how to handle money. Personally I think they are taking advantage of my parents but they are the ones that tend to the parents 2 times a day. The rest of us live a few miles further away and we all have children and other responsibilities. This sister and BIL never had children and BIL is kinda self employed. I have 3 jobs and 3 children.

Going back to you question about protecting assets from being spent on the cost of a nursing home, you sis and BIL don't seem to have a clue what they are talking about.... i think everyone needs to meet with the lawyer to go over things.

???

Was your parents' lawyer aware of the bankruptcies?

It is an obvious risk to grant DPOA to people who are proven to be bad at managing money. It exposes your parents to abuse, and it puts your sister and her husband in a highly compromising position. If they mess this up, they will be in serious trouble.

You all of you need to get together and figure this one out again. You need a plan for ongoing care for both of your parents; and you need a way of managing their money that doesn't make life unnecessarily difficult for your sister and BIL but does not allow them to cross lines.

No one needs to accuse anybody of anything, but you do all need to know exactly how this plan is going to work.

My sister and BIL get highly insulted when questioned regarding their POWER. They want total control, no questions asked.
I am not sure if the lawyer knows of sisters bankruptcies.
We are all walking a fine line and not wanting the sister to walk away from caring for them but we would like the finances to be more transparent.
So if I understand it correctly...If my sister does have DPOA over my mom since mom is competent, my sister is out of bounds by taking over already??

I agree my sister and brother in law are clueless. They say things to justify their means. They have my fathers IRA and they said if my father didn't spend a couple thousand dollars by a certain date, there would be a penalty where they would lose that amount. I could be wrong but I never heard of such a thing..has anyone?

Legally, as long your mother is competent your sister cannot override your mother's decisions. The DPOA allows your sister to act FOR your mother. She can act for your mother now, with your mother's permission. Later on, should your mother lose mental capacity, the DPOA will allow your sister to act on your mother's behalf, in her best interests, with or without your mother's consent.

For your sister and BIL to expect no questions to be asked is wholly unreasonable and unrealistic. They are *accountable* for how they operate the DPOAs that your parents have given them; obviously to your parents, and then as well not only to you, but to any safeguarding authorities operating in your state.

The fine line you are all treading, I'm afraid, is almost as unrealistic. Essentially, what you and your mother and the family want is... for your sister and your BIL to be different from how they actually are. You want them to provide the care, to manage finances more competently than they ever have before, and for them to welcome your questions and provide clear, coherent information.

Looking at that list... even if they were willing, when it comes to the money they're not even able, are they?

I suggest you and your siblings start quietly looking for a continuing care facility which will accept your parents Medicaid pending. There is a search tool on AgingCare which might be a start. They're not as numerous as we might like, but there are facilities which will be able to provide different, changing levels of support for both of your parents. Find the right one, and then not only will your parents stay together, without overburdening your mother; but you will also avoid all the complications of having to maintain your mother in a house with a Medicaid lien on it.

It does mean that there almost certainly won't be anything to inherit. Is that going to upset anybody?

Call the lawyer who did the DPOAs and ask about the bankruptcy issue. It may not even BE an issue; or you may hear horrified choking sounds coming down the phone line, in which case you can assume that no he didn't know.

With your sister and her husband being so defensive, you're unlikely to be able to get through this without them having a bit of a hissy fit at some stage. The rest of you are going to have to link arms and stay calm. Focus on the best possible plan for your parents, that's all that matters.

Concerned, there are so many unsettling issues about this situation but I'm only going to address your last comment. Given your parents' ages, IRA distributions must be taken annually or the owners face tax penalties. However, if they have ROTH IRAs, distribution isn't required until after death.

There are charts based on age expectancy which dictate the minimum distributions, called RMD - Required Minimum Distributions. This IRS article provides good background information:

irs.gov/retirement-plans/retirement-plans-faqs-regarding-required-minimum-distributions.

If the URL is deleted, search for "IRS, retirement plans" or "IRS, IRAs", or "IRS, RMDs".

Now, what do you mean by "they have [my father's] IRA? Do you mean they're beneficiaries? Do you mean they're holding the paperwork?

For 2018, the RMD must be taken by the end of the year. There's still plenty of time to see an attorney and try to get the whole issue of their control and legal meddling straightened out.

And, seriously, I do think an attorney needs to get involved, ASAP. And not one of their choice, either.

They are holding his IRA papers and total control. As far as I know what is left is divided among the 9 grandchildren. I know there are dividends that show up possibly quarterly in a check.
I am grateful my sister stepped up in the care but they are ruining my parents financially. I do think my BIL is pulling all the strings and my sister just listens to him. To add to the drama my BIL is addicted to scratch off's, ciggarettes and alcohol plus he owes the IRS over $500,000. for not paying taxes for years. It is a total mess.

When I say "they" I mean my sister and BIL are holding the IRA papers.

If parents bills are not being paid this could be abuse on ur sisters part. DPOA does not give her the right to spend parents money. You need to contact that lawyer and if parents are still of sound mind get the DPOAs revoked.

Your questions involve many circumstances and emotions that can become escalated during times of transition and declining health.

One way to approach the problems you are describing is to confirm who represents your parents. The attorney who drafted the documents that your parents signed should be able to confirm that he/she was representing them, and their interests, and that there were no conflicts of interest.

The agency in your state that regulates attorneys can provide information to you about the role of the trusts and estates attorney who advised your parents, and the duties of loyalty and confidentiality that apply.

I am not an expert on any of this. I will tell you what my experience has been with my family.
It isn’t necessary to spend the IRA “draw” it is necessary to remove a specific portion from the IRA each year after a certain age. If it’s not a Roth IRA then taxes have to be paid on that portion. But that money can be saved in a separate account. Absolutely no requirement to spend it. That’s ludicrous.

A couple of thoughts.
Not all attorneys are the same. A simple phone call to the attorney requesting a copy of the DPOA can be done. Entirely appropriate to pay a fee to have it copied etc but it shouldn’t be extreme. Just ask the question. How much?

But think this out. Once you have the DPOA and it says basically what you already know, what then?

You don’t even need to go to the same attorney. Take mom to a separate attorney and explain what is going on if you don’t trust the first attorney.

Mom can have a new DPOA drawn up for herself. She can assign one of her other children as first POA and then a second one in case the first can’t perform. Or she can assign any other trusted person. In fact with Moms current POA (sister) having health issues it is prudent that she do so. She very definitely needs to know if the son in law is listed as second POA if his wife, her daughter, can’t serve.

To me your mom needs protection now. But she is going to be insecure about changing things if you are going to drive away and leave her to deal with your sister and BIL.

Since your dad has dementia his needs will increase.
Is mom expected to care for him?

A visit by sister a couple of times a day isn’t much care but may be all that is needed for this stage of your dad’s illness. But his needs will increase.

Your mom and dad are two separate people. It’s sometimes hard for children to see that.

Depending on your mom and dad’s state laws, as to community property, your “Dads” IRA is most likely both your parents IRA. Your mothers portion is included in that. It could be set up without mom’s name on it but she can check. Does the mail still come to mom’s house? Take a look with mom and see how things are set up.

Make some phone calls with mom. Make a list. Quit being afraid.

The part about the five years is that if your parents assets are “gifted” in the five years preceding their need for Medicaid then there is a penalty.

Medicaid is set up to pay for the care for the indigent. If a person has given away their assets before going into a gov paid for facility then that’s the same as stealing from you and me, the tax payers. BIL is already a thief from what you are saying and as his spouse, sister is right there with him.

Medicaid has rules as to who can receive this care. One being the proper management of their assets prior to needing these services.

So basically if your sister misappropriated mom and dad’s funds then someone will have to take care of them without the safety net of Medicaid.

So this makes the DPOA your business assuming that might be you having to help care for your parents.
But legally sister doesn’t have to disclose information about dad’s finances to you.
Mom’s assets being jointly owned is mom’s business. As her agent you could help her get that information and hopefully help manage your parents into a better situation.

If your mom and dad own a home and a car and their IRA and you know that dad is going to eventually need to be placed in a facility, it’s very important that mom’s interest be protected In order that she can live after dad has increased expenses.

So a certified elder attorney well versed on Medicaid laws in your parents state is a necessity to work through this maze. Mom might actually be able to take a portion of the IRA to pay for this service. Since she is already past retirement age there is no penalty to take these funds out. But again taxes have to be paid on them. All the taxes will be refunded if parents only have social security income. It is so important that you get the proper help for your parents.
You may find enough fraud to request sister rescind her DPOA duties.
You need an attorney for this. I would not expect sister to just fold if this is their meal ticket.

Additionally the beneficiary on the IRA needs to be checked. If sister had the parents sign that she is sole heir to the IRA then that is something that mom might want to look into.

She and dad may have decided they want her to have any remaining assets in exchange for caring for them. That’s something mom should know.

On the DPOAs I have dealt with any bank accounts that have a POD or life insurance or IRA funds that have a beneficiary named, all of these are outside of the power of a DPOA to change. Only the principal ( mom and or dad) can change them. That power could have been included. 
But possibly the sister and BIL have already had their names put on these accounts as well with the help of your parents.

Perhaps your parents knew that she was their only choice because all of their other children “ had other responsibilities”. 
So think this through. If you have all been busy and unavailable you may have left them with the only choice they felt they could take.

I will also say that it is very difficult for an outsider ( you with your jobs and children) to know what is actually going on. It does sound like your mom is being ‘managed” but be very sure that she isn’t embellishing her stories. Bills not being paid is a red flag.
Is mom not able to have her own bank account and pay her own bills? Is mom already incompetent or just never had the responsibility before?

Check to see that home owners insurance, auto insurance and taxes are being paid.
That’s what my aunt usually used her draw down for.

Remember if you decide to help mom you need to help her to take action before she has an event that causes her to lose capacity.

I think the Assisted Living facility is a good idea to make mom not so dependent on family assistsnce and to help her with dad.

You can do this. Get a few facts under your belt and search for a certified elder attorney well versed in Medicaid laws. Your mom is going to need support during this transition. You may have to get a restraining order against your sister and BIL to keep them from interfering. You are trying to separate them from possibly their only means of support. Speak to your attorney.

I can tell you that if my family's lawyer was called up and told that one parent did not understand what they were signing - the attorney would be very upset. Most attorneys are scrupulous about making sure that the older person knows what they are signing in case the lawyer should get taken to court. Sounds like you need someone outside of the family to be POA. Dementia is a tricky thing - one minute a person can seem normal and the next they will think that Richard Nixon is still the President! The whole family needs to meet with the attorney is all members agree to it, and get someone else to take over as POA if there is a problem.

With the information you have provided; it would be in your mother’s best interest to meet privately with the lawyer who drafted documents. She can change her will, DPOA, AMD, etc. it seems odd that your mom wasn’t DPOA when dad became incapacitated?

With additional info regarding sister and husband— mom could make a case with her lawyer that they aren’t acting in dads best interest.

There is no 5yr look back...so they can’t be siphoning off assets, avoiding paying parents bills, etc. this is considered illegal and in violation of their responsibility as DPOA.

If you have such suspicions you can write to attorney who drew up the papers for parents and make him aware. He can choose to investigate or at least make your concern part of parents record in case there is issue later.

Regardless, if you believe you have proof they are using parents assets for their personal or others benefit vs parents—then you can file a grievance on parents behalf. In other words you can take legal action.

6

I do appreciate all the advise and you are all right I do need to get involved to help my parents. As far as car insurance being paid..it is not. When my mom set up the insurance she could get an additional discount if she gave an email. Mom gave mine and I have received notification that is was due. Conveniently my BIL decided he was going to remove Dad's truck and now he is driving around in it and the insurance was lapsed as of last week.
As I am writing all these red flags I am getting so furious! It never should have gotten so far. I am mad at myself for not stepping in. I will give BIL credit though, he is good at handling Dad, better than my sister but he does seem to have a motive.

Darling person, don't blame yourself for not acting earlier. Your sister and BIL *are* helping your parents; they're probably doing their best, even; and it's natural that you don't want to risk upsetting them so much that they flounce off and are never seen again. Besides, you'd be amazed what some people turn a blind eye to because they're too embarrassed and uncertain of what to do to intervene - your sister and BIL are nothing like the worst.

But, trying not to be furious with anyone, or accusing anyone of anything: your sister has DPOA and she is married to a repeat bankrupt, and ? gambling addict would you say?, who owes half a million to the IRS. Would YOU describe him as a fit and proper person to be involved? He probably thinks he's a financial genius, which is why he gets so high on his horse when the rest of you ask common sense questions.

Calm, practical and matter of fact - take professional advice, and make better plans. It shouldn't be too late to save the day without anyone getting seriously hurt.

Oh my God you made me laugh because BIL does think of himself a financial genius! He is genius in all categories, not just finances lol. My sister has a low self esteem and thinks he is all she can get.

I need to get together with my Mom (she is very hard of hearing and doesn't hear my voice especially over phone) to figure out who the lawyer is and take it from there. I fear BIL coming in on us. My sister and BIL got upset when Mom gave me her house key. 

If sis and BIL are deemed unfit legally with finances , does the State step in to remove the finances from them?
None of the family want either parent to be put in a home or assisted living. Mom said she told the lawyer she wants to remain in her own home til she dies. I fear there wishes will be taken away if I open the financial can of worms. Could that happen? Are finances separate from health in the State's eyes?

Your mother is competent, so she can annul her own existing DPOA and create another instead. She could, just a suggestion, cite your sister's recent serious illness as the reason for doing this: she doesn't want your sister burdened with the responsibility, that kind of thing.

I genuinely don't know what might happen if you raise the issue of their poor financial track record as a couple. Maybe nothing, and you'll be no further forward. But you can probably find out if your state has its own rules about fitness to hold a power of attorney for someone. The article below is related to the Uniform Power of Attorney Act 2006 (this is all new to me, I'm just finding my way through it), and the trick is to find out whether or not your state has adopted it. There are tables towards the end of the article that will tell you; or you can go to your own state's website and have a dig around there.

You then have the question of who else might your mother ask? Any ideas on that score?

For background reading: there is a very interesting article discussing the whole subject of POA Abuse and preventive policies at

https://assets.aarp.org/rgcenter/consume/2008_17_poa.pdf

This snippet from it has an interesting idea, too:

"Lack of monitoring. POA abuse can occur whether or not the principal has decision- making capacity. Abuse is rarely detected if the principal has become incapacitated because there is no monitoring of the agent’s actions by a third party *** unless the principal has authorized such monitoring in the POA.***" [my asterisks]

So your mother could revise her DPOA and insert a requirement that your sister provides you, or all of you siblings, or some other trusted supervisor, with monthly or quarterly accounts.

Anyway - I really would start with clarifying your sister's eligibility, and making quite sure that their financial history doesn't disqualify her (it's not looking like it, as far as I can tell).

The possible impact on your parents' future care plans... Well. It is a myth that state-based social services like nothing better than to tie elderly people up and incarcerate them in nursing homes. Best practice guidelines mean that the State will bend over backwards to keep your parents in their own home (it's cheaper, apart from anything else!) unless and until it becomes unsafe or unsustainably impractical.

Thank you ALL

I had Mom on speaker and we called the lawyer that drew up Trust Will and DPOA. My sister has DPOA over both parents. The lawyer also said that my sister G and sister N and brother in law are both parents health care proxy! Mom was totally floored by this.
I got into the IRA account and my sister has withdrawn over $11,000.00 this year, $6,000. about 3 weeks ago. The money is put into a checking account that I do not have access to. Mom received a property tax bill today that is past due by 2 years. My sister has a major irrational screaming fit asking me why my mother is acting angry toward her. I told her "Mom feels threatened that you want her to go to a home after the 5 yr look back. My sister came totally unglued screaming, she wants their house and doesn't want my name on it.
My mom wants to change the financial situation but doesn't want to hurt my sister legally or emotionally. If someone could just do a random audit and force my sister to be transparent on the finances that would be perfect. Does anyone have suggestions?

Well, the first thing I thought is that, as things are going Mom is not going to be in her house down the road, because unless both your parents are megarich, their money is going to be drained by your BIL and sister and they will not be able to afford the house. After all, tax bills do have to be paid. It seems that financial abuse is occurring and there will be consequences. Your mom needs to get control of this runaway train before it demolishes her and your dad's future. Since she is still competent, she should consult her lawyer - the required minimum distribution from the IRA should provide some money. But she will have to decide to take control while she still can, financially, and in every other way. She will need to decide whether she wants to take the consequences of trusting your sister. Nasty consequences. I suspect that she sees sister as her only way of continuing to live in her house - as a poster above already described. Basically it seems that you want your sister and BIL to do the care work - but are you really willing to let the foxes guard the hens?