What rights do I have in a shared POA role?

A fellow caregiver asked...

My father made a living will listing the POA's for him as 1-his wife, 2-my older sister, 3-me to handle his financial affairs(he had Alzheimer's), including selling stocks, etc, it appears. My father died a year ago. His wife has Alzheimer's and has listed my step-sister (his wife's daughter) as her legal guardian. My step-sister is POA for her side of the family for the family trust which has a considerable amount of money. She just wrote a letter advising my side of the family that on the advice of our trust attorney, she sold some stocks and bonds, etc., which were not listed in the estate and she has put that money in an account, apparently in the name of her mother, my dad's wife at the time of his death, and also paid a year ahead for the nursing home for her mother to save money. She also sent us each a "gift" of $500. She also is charging our estate money to care for her mother, who is in a nursing home (that amount is unkown). My oldest sister is the POA listed in the estate trust and in the living will to handle our side of the legal affairs for the trust and for my dad when he was alive. I am curious as to what was sold, how much, what it is spent for, etc., and it seems to me my step-sister should not have total control of that money, the amount of which I have no idea. I also question her right to charge the estate to care for her mother since she is in a nursing home paid for by the estate. My step-sister lives in a different state and she moved the estate attorney from our state to hers (apparently with the blessing of my sister as our POA) so she basically has total control of anything outside the estate as she sees it. I have never seen any documentation of any financial transactions and my oldest sister will not send or has not sent any. Do I have any legal right to see the trust account and/or the financial proceedings handled by my step-sister, since the stocks, etc. belonged to my dad and his wife? Shouldn't my oldest sister give us information and/or let us see what is going on here? Thx for any advice you can give.

Expert Answer

Barbara Repa, a Caring.com 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.

Rankling as it may feel, your sister and step-sister's actions and inactions may well be perfectly legal. But you describe an estate plan that seems to involve a lot of different documents, powers, and people named to control, so getting to the bottom of who controls what may take some patience and sleuthwork.

The first thing to keep in mind is that the power granted by a power of attorney dies along with the person who appointed that agent, so it is likely that your older sister is not responsible for any of the current financial management. In your scenario, that may help straighten out some of the mystique, but perhaps not all of it.

The key is to find out who was appointed trustee of the trust that currently exists. That is the person who has the right to control and manage any remaining trust assets. Usually the trustee is obligated to act in the best interests of the trust beneficiaries"”although trusts can also contain specific directions about spending assets or about providing for the care and maintenance of another person. So if your father crafted the trust to provide for his wife's care, your step-sister may simply be following legal orders if she has been named sole trustee.

One beauty and bane of trusts is that their terms are private, unlike wills and many other types of estate planning documents, so it can be difficult for people"”even surviving family members"”to discover their terms. From a practical standpoint, your best bet may be to approach your step-sister informally and noncombatively, simply explaining that you're interested in some of the specifics of the trust management, just in the hopes of avoiding bad blood down the road. In a surprising number of cases, this can clear the air.

But if this approach isn't possible or isn't successful, your last resort may be to petition the court in your step-sister's state, demanding an accounting of the trust administration. Courts usually have the discretion to grant or deny should a request"”and some will stipulate that an impartial third party must review the accounting.

But even demanding this accounting is something you should weigh carefully. Unless you have some fairly good evidence that there has been some misconduct, the action may add to the strain of your relationships. As a last resort, however, it could simply underscore to your step-sister that she needs to act honestly and fairly and as the trust directs.