Question: I know that you do family law and divorce here in Reno, but I was wondering if you also do elder law? My mother is failing in health and it appears to me that she now has dementia. My father died several years ago and my mother lives alone. She owns several pieces of real estate and has a lot of money in bank accounts and investment accounts. My brother is kind of a low life and I just found out yesterday that he had her sign a power or attorney so that he can “help” her with finances. I am really concerned that he is going to take advantage of her. Throughout his life he has constantly borrowed money from my parents and sponged off of them any way he can. What can I do to stop him from taking advantage? My mother, of course, protects him at all costs and thinks he is just trying to help her.
ANSWER: It sounds like you may need to establish a guardianship for your mother in order to protect her. The first step is to take her to her doctor and see what the doctor believes with respect to her mental capacity. If she is incapacitated it means that she is unable to receive and evaluate information or take care of her own health and safety. She may also be of limited capacity, which means that she is able to make some decisions necessary to protect herself and her property, but not all decisions. If a person is incapacitated a full guardianship may be established. If a person is only of limited capacity, a special guardianship may be established.
If her physician determines that there is an issue with her decision-making abilities and agrees that a guardianship may be necessary to protect her, then you can ask the physician to sign a certificate indicating why he or she believes that a guardian is necessary. Once you have a physician’s certificate, you may file a petition with the court requesting that a guardianship be established. You will be required to include in the petition many personal details about your mother and the proposed guardian.
Before taking this step, however, you may consider approaching your brother to determine whether he is willing to be a co-guardian of your mother along with you, that way you will not necessarily be adverse and you may be able to avoid an acrimonious legal battle over control of your mother’s finances. All members of your family will receive notice of the guardianship hearing and will have the opportunity to object to the proposed guardian.
Once a guardianship is established, advance court approval is required before the guardian may do most things with respect to the protected person, including liquidating property, cashing out accounts, paying bills, or moving the protected person out of their home. The guardian must also report to the court on an annual basis as to the protected person’s well-being and finances. This mandatory reporting to the court will help protect against anyone taking advantage of your mother.
If you, for whatever reason, are not able to establish a formal guardianship and believe that your brother is taking advantage of your mother by misappropriating funds or engaging in other types of financial misconduct towards your mother, then you should contact the appropriate authorities and report him for elder abuse, which is a crime.