Can I get irrevocable POA over my brother who abuses drugs?
Can I get irrevocable POA over my brother? My brother who is 48 years old has a history of drug abuse. As of this moment he is clean and sober and is about to receive another portion of his inheritance from our step-father. At this moment he has agreed to give me power of attorney over his finances indefinately because when he received his last inheritance payment he spent it all on drugs. Is their anyway I can have an Irrevocable power of attorney in case he decides to go on a drug binge and wants to revoke it? He wants to protect himself from himself. I reside in Michigan and he resides in Florida.
The irrevocable powers of attorney you describe that give a person absolute authority to deal with another's property are rare.
Courts generally require that the person appointed to act must have an interest in some underlying property, so that if the power were revoked he or she "would be deprived of a substantial right." In real life, that means that such documents are usually confined to stock transfers and such in which those involved are related by blood or business. However, if you were likely to be legally entitled to take your stepfather’s property if he and your brother died, you may fit this legal description.
You could also consider going to court and petition to have you or another person become your brother's conservator, also called an adult guardian in some states. This legal proceeding would make you responsible for your brother's finances and prohibit your brother from regaining control of his affairs without the
consent of the court.
While this step is rather drastic, it may be the best way to provide complete protection. It will, however, mean presenting the court with evidence of how and why your brother needs such protection, which may be painful or embarrassing to both you and your brother. To find out more about the local procedures required to get a conservatorship or guardianship in place, contact the Florida court closest to where your brother now lives.
I'm an attorney in Michigan. I agree with the previous post about your power of attorney and what can it accomplish for you. In MI, you may have a problem if you try petitioning the court for conservatorship (when dealing with someone else's finances) over your brother, since the court will ask him at the hearing if he agrees to appointing you over his assets.
As a side note: Step-Dad's trust should of had (and I do a lot of Will/Trust creation) provisions for the trustee to not distribute said inheritance unless he is sober/clean for a period of x months... And they could have limited the amounts he would received 'up to an amount of wages made in that year' that way there is an incentive for the brother, drugee, to get working.
Don't forget that if he transfers the account with the funds in it over to you, you may have a gift tax issue (depending on how large the amounts are) that's just a side note (i'm a cpa also)
Feel free to call with questions:
Joseph J. Dadich, Esq., CPA
Southfield, MI 248.358.6965
Creator of '20 Minute Emergency Estate Planning Blueprint for busy parents' (tm)
Counld't this person set up a non-revocable trust? that is what I am doing with two disabled kids. (one an ex druggie the other one Dev. Dis.)