My brother is 45 years old and has lived rent free at my mom's house for years. He doesn't work and uses/and we suspect sells/ drugs at her house. He has taken over every room and trashed her house.
We tried to clean the house up getting it ready for a caregiver to visit. My oldest sister had POA to handle her expenses . She confronted my brother with evidence of him forging and uttering with my mom's account. My brother talked my mom, who has dementia, into hiring an attorney to get my sister removed as POA. They secretly did this and the attorney never notified us. When we called this attorney to to question this, she explained she was now handling ALL of my mom's estate which has been put in a trust. She controls my mom's money and where it goes. She has given my brother free rein of my moms money and let him buy some new appliances and supposedly painted the inside. This attorney told our brother to unplug the phone so we can't call our mom. (we have tried calling for 2 months with no answer) When we go see my mom, my brother calls the police to say we are trespassing on the property. Last time we went down, we went inside and saw black mold growing on the ceiling in the kitchen and roaches in the floor. When my brother saw us, he became so angry that he physically punched my sister in the face and tried to choke me and hit me over the head with a vase. We have charges out on him for 2 assaults and on another incident, he threatened to kill me. My brother has basically kidnapped my mom so she isn't allowed to see the rest of her family. We all live out of town so we have no way of knowing if she is ok. Since my brother is brainwashing her telling her we are trying to put her in a nursing home (which we would never do), how do we handle her anger if we do get guardianship of her?
Second, was Mom formally, in writing, diagnosed for Dementia before she revolked sisters POA and assigned brother. If so, then what the lawyer did was illegal. Your Mom was not competent to assign your brother.
Third, you need to get a lawyer. Guardianship is a long process and expensive. If granted, you maybe allowed to use Moms money for the cost. But Mom would need to be found incompetent to handle her affairs. She will need to be present for the hearing and brother can contest it. He can actually fight back trying to get guardianship. So, I would keep it hush hush until he is served.
You will have to prove negligence on brothers part. That he is using his POA for his own gains. Some proof he is selling drugs. Also, that he is using Moms money for his own care. Like where does he get money to buy clothes, food etc. Will he claim he is Moms care giver.
Getting him out of the house will be hard. Drugs will need to be found there and enough to show "distribution". Then the police can walk him out the door. Not sure if APS gets involved with something like that. But it could go towards him creating an unsafe environment for Mom.
With a lawyer already involved, and a trust having been created which she administer for your Mother and your brother I doubt that you will win.
A court case will be very expensive UNLESS you win and can recover money from the estate to pay for the court case. I cannot imagine a lawyer that would touch this case, but you may find one. If so, I would go into court with an elder law attorney and ask the state to step in as temporary guardian while the case is fought and evidence presented, and you WILL need evidence of abuse by your brother, so bring all your documents and arrest records regarding the assault. In fact the state, given a war between siblings that involves actually physical assaults will almost certainly choose to KEEP guardianship which would mean they will make all decisions about who lives in Mom's house, when and if it is sold, how her money is spent and where she is placed. There will be then nothing left for you and your brother to go to war over.
Be very careful in this war that everyone doesn't not lose everything completely. It sounds a lot like that is where all this is heading. Very sorry for all the grief in your family.
i think a good judge is going to consider what your mom wants no matter her cognitive condition .
The attorney who states she's "handling all of the trust", controls your mother's money, and has given your brother "free rein":
Your mother would have had to sign a Trust in order for this to happen. Was there coercion, and/or do you suspect it? Elder abuse may be an issue for the state to investigate. But you will need proof. Do you have that, other than phone conversations? Do you have anything in writing from the attorney?
Does your mother have documented dementia? If so, and she's not capable of understanding what she's doing, that may be cause for rescinding or invalidating anything she signed, as well as for examination of the attorney's actions.
Next, if you do have documentation from this attorney, you can file a complaint with the state bar association, and she'll be investigated. Reprimands could be options, or more stringent action can be taken. Some offending attorneys are actually disbarred.
Next #2, your brother's violent behavior. If he hasn't had an adjudicatory hearing yet, plan to appear and ask to speak in court before sentencing is done. With his violent behavior, he should not be anywhere near an elder person, even if your mother wants him around. I'm not sure but I believe a vase used in an assault could raise the charge to Felonious Assault, probably a felony and not a misdemeanor, which would bring a longer and more severe sentence.
Next #3, mold and roaches are NOT a safe environment for your mother. You could get APS involved, but know what given your brother's volatility, you should probably warn them to get police accompaniment.
As already stated, given the situation, the court may remove control from the attorney and your brother and appoint someone. Be prepared for this.
I think the likelihood of your getting guardianship might be difficult, given the family situation, but you're more than likely going to need legal counsel to shepherd this case through the courts.
Would this be an outcome you and your sister could accept?