Does a beneficiary have total control over care?

Csaun009 asked...

My brother was adopted and his adopted mother is about to pass away with cancer. His older brother is the benificiary. She is still alive and the benefeciary acts as if he has control over everything. Does he? The lady is still able to talk and everything. Can she change the beneficiary? Do any of the other siblings have say so on if they should transfer her to another hospital and get a second look at her or where she can be taken care of better? Also if she does pass and she does not have a will what will happen to her assets? Does the benefeciary have total control over everything or does everything have to be divided up equally? Does the other siblings have say so in anything? Can they argue anything in court? Can she write a will on her death bed or change the benefeciary?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

The scene you describe is sadly common: When one parent becomes gravely ill, the children become confused and crossed up. Often, the oldest child"”because of a sense of responsibility or sometimes just natural bossiness"”will attempt to step in and "handle" things, which can make the other siblings feel even more left out and helpless and angry.

In this situation, the older brother's authority depends on exactly what legal documents are in effect. And there are a few words and labels involved that have very specific legal meanings.

If he is named a "beneficiary" or "executor" in his mother's will"”one of the people who will take over ownership of her property at death"”then he has no rights until she dies. And he has no right to make decisions about how her medical care or finances are managed.

On the other hand, if he has been named the "agent" in a power of attorney for finances and healthcare"”and that document specifies that he should take over at once, then he does have the obligation to make decisions based on his mother's best interests.

If the powers of attorney specify that they take effect only when his mother becomes incapacitated"”which is a usual clause in those things"”then he can act only when she is basically not able to act for herself.

As long as the mother is able to act for herself and to understand legal documents and what they mean, then she is legally able to change or write any legal documents"”including a will, a power of attorney, a trust.

To get to the bottom of what's going on here and whether the mother has the documents in place to direct things as she wants, encourage the siblings to sit down and talk it out"”even if they might not be the best of friends these days. You might remind them that given that she is gravely ill, they might not have the luxury of a lot of time to make things right.

If tensions are too high for them to negotiate a solution on their own, you might encourage them to go to a family mediator for some help. Most communities have free or low-cost services for just this purpose"”usually listed in the telephone book under "Community Boards" or "Family Mediation Services."