How can I protect my mother's finances from her "friend?"

1 answer | Last updated: Oct 01, 2009
Bill p asked...

A couple of years ago, my mother appointed me as executor of her will, and I have power of attorney to act on her behalf. Either she or I can make financial decisions. Mom is in the mid-stages of Alzheimer's, and sometimes thinks that all the money she has is the couple of thousand in her savings account. She has serious short term memory problems. She attempted suicide recently, and I have a copy of the police report. She has a longtime friend who is insistent on getting control of Mom's finances. They are not married.

My siblings and I do not trust her friend's motives, even though Mom trusts him. Mom has other tangible assets, and my intent was to sell off property, take the proceeds and move them into Mom's investment accounts to provide for her long term care.

Question: Should I pursue getting my mom declared legally incompetent, due to her diagnosed Alzheimer's condition and the attempted suicide? In your opinion, do we have enough evidence to do so and keep Mom's "friend" from doing anything fraudulent?

Expert Answers

Liza Hanks is the founder and owner of FamilyWorks Estate Planning, a law firm with offices in Campbell and Los Altos, California, and the author of The Busy Family's Guide to Estate Planning (Nolo, 2007).

Based on what you've described, and the very real possibility of elder abuse, it would seem wise to pursue using that power of attorney to organize and protect your mother's finances.

You need to review that document to see how it defines incapacity: some documents go into effect upon signing, in which case you already have the authority to act on your mother's behalf.

Most, however, require a determination of incapacity, and will specify what that entails. Often, powers of attorney specify that two physicians must state that the principal is unable to manage his or her own affairs before the named agent will be authorized to act.

If you're not sure what the document requires, or it does not accomplish the goal of protecting your mother's best interests, consider consulting an experienced eldercare lawyer. Ask friends and family members for recommendations. Or you can begin your search at the website of your state bar.