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My half bro is taking my father to court, 12/18 for guardianship - I have POA and Health proxy - he has not been in my parents lives for appox. 30 years. My so called mother coaxed my father (91) into making half bro Trustee - He threw my father in a home (when my father took too many Ambien) and now is taking my father to court (doesn't care) because he wants the money in the bank that my father gets SS and pension. My father opened an acct. and put my name as well - my father has a living will - that's his money and he is allowed to take it out and spend whatever he needs. I went to a lawyer to document this. How can I win Guardianship over my father so the beast will not - I have always taken care of my parents and live mins. away - he lives about an 1 hour or so.

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Igloo572, I have my own accounts for my own income. I am only on my parent's accounts since 20 yrs ago they realized they needed some body local, in case they took a turn for worse, someone would have to write checks. Of course nowadays, unlike 20 yrs ago, hardly anyone uses checks......but they have granted me online access. They also changed their POA/will to have me handling everything, since I was doing all those duties anyhow. Our monies most definitley are not commingled.
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I went through the guardianship process last year (mother with dementia) and I was POA and AMD and on my mother's accounts. I was also trustee.The guardian ad litem did an investigation and found there was no financial wrongdoing. Also found my mother were being cared for well in my home. He ended up recommending guardianship. So it should have been easy but my brother hired a lawyer and challenged it on no grounds at all with no evidence, tried to get a "neutral" guardian appointed. He lives overseas and rarely saw them but just didn't want me to be in charge. The lawyers saw this as an opportunity to make more money and they dragged it out. The court appointed a lawyer for my mother who never spoke to us, only talked to my brother for two hours and came charging into the picture, slamming me to anyone who would listen, saying that I was greedy and trying to steal from my mother. I suspect my brother asked for her to be appointed guardian and she wanted the money. She claimed after one conversation that my mother was competent after all (against the evidence of 3 doctors' letters) and boasted to the other lawyers that she could "get" my mother to sign documents removing me from the trust. Anyway, it was stressful but we reached an agreement with my brother where I would remain in all my roles and he would receive financial statements. No guardianship but POA cannot be changed. It was a huge mess and cost my mother over $50,000 that could have gone to her care. So beware of the guardianship process- it makes money for lawyers (especially those with shady ethics) but does little good for anyone else. My two cents.
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Samara - POA can be revoked or changed quite easily. A parent often does this in a fit of pique if things aren't going their way. Or another family member or outside interest gets them to change POA. Even if you are dooa, they can still go & do things financially or medically on their own with or without the DPOA in agreement. Guardianship is a defined legal action by court order from a judge in which the guardian takes over all decisions for them. So pawpaw cant go withdraw $$$ to spend at the casinos anymore. Can be just guardian for finances too. Guardianship has reporting requirements, may require bonding, background checks. Guardianship pretty serious legal stuff.

The judge seems to look at the guardians self sufficency in awarding. You have to have your own income. If you share your banking it's commingled, so who's $$ is who's type of ? arise - thats when its a problem. If you have your own accounts tied to your SS# that your income goes to and also are a signer on parents accounts (in thier SS#) that's fine & makes sense to be able to pay bills, do banking, etc and within your ability as DPOA. Often if all this is muddled, the judge will appoint a temporary outside guardian ( these are vetted by the court & have some sort of training or expertise) till family can clean up finances. When I was executrix for 2 aunts & spent countless hours in probate court years ago ( where guardianships are also heard), there always was a paralegal or an attorney about at the ready to be named temporary guardian & appointed the moment family started any infighting at the hearing.
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In additon to be confused, I'm also alarmed that someone would be disqualified as a potential Guardian simply because tbeir name is on parents checking accounts. I'm on my parents' accounts for like, forever, and its a good thing, in case they need me to step in and handle their finances on a moment's notice (or a longer notice). How come it now sounds like its a bad thing?
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I'm confused. How could someone who has already chosen their POA and Health Care Directive, be in a situation where there is a Guardianship hearing?Is not the reason to choose your POA and fill out Health Care Directive, prprecisely because you want to make that choice (and prevent some judge appointing a Guardian)?
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You would be served papers as another possible Guardian.
This has nothing to do with being a trustee. The Trust is a separate entity and has it's own rules and procedures.
Nor will he get Dad's SS and pension, which goes to the Nursing Home.
My guess is that neither one of you will be named as Guardian, due to financial conflicts of interest. Both of you are tangled up in the money, he as trustee and you having your name on his accounts. Judges want someone independent.
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If your half-bro hasn't been in your parent's lives for 30 years, how did he "throw" your father in a home? And where were you when this was happening?
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Igloo is spot on about past issues as a help or hindrance to guardianship. You can also ask the court to appoint a neutral guardian who will usually let you continue in your role without much interference.
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You need to get your own attorney to present to the court your own petition for guardianship. You need to do this ASAP too. if you are currently the DPOA and have financial within the DPOA, then you probably can write a check for this grim parents account. But you have to move on this NOW!

Realize that Guardianship is costly. Expect 5-10K for this. If you are going to do this, money has to be spent. to find an attny, I'd go to your online courthouse site, to recent probate filings (probate is open court & public record) and look at the law firm names for guardianship filings. The same firm names will come up over & over again, those are the ones you contact to see if they will take your case; who you want as they know the judges & how they run their courtroom.

Couple of items: if you or anyone in your household has issues - like you have a past foreclosure, really bad credit score, kid has juvee issues, neither you or your spouse have established income, etc.- the judge will take those into account in awarding guardianship. So think if either you or your brother could have problems with "your character". Also realize that the judge does NOT have to grant guardianship to family. Often if there are competing family petitions, the judge will appoint an outside person usually as a temporary one for 3 / 6 months who then reports to the court their findings. From that the judge will make a decision as to the permanent one. If brother lives out of state, judges usually don't like that as they want & expect a local & instate resident.
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If you have POA why is a guardianship needed? Do you have health care and financial POA? Are you involved in your father's care? You can attend the hearing and tell the Judge you've been assisting your father and you live locally. Speak with your father's physician, see if he'll write a brief letter about your involvement with your father's care. If you can afford an attorney that would be good. Sounds like the circumstances are complicated. You can contact your local Area Agency on Aging or Bureau of Senior Services and ask to speak with the guardianship coordinator, this person can give you info about guardianships but cannot give legal advise. Good Luck.
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Remember, as POA you still cannot nor can your half brother spend your father's social security money unless one of you is made Representative Payee. Social security does NOT recognize POAs. You do not say if your father has dementia. At 91 yrs. he probably has some, however, if he is still coherent, take him to the social security office and have them ask him questions and he can make you Representative Payee. What did the attorney say? You need an attorney whose practice is based in family law or trust law. I don't know all the details, but someone who hasn't been in someone's life for 30 yrs. won't fair very well in the Court's eye, and you probably will be made guardian. Make sure to document all you do for your father/mother. Good luck!
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I think if you challenged the guardianship, the court would have to take it seriously, especially since you have POA. Many times in a legal document, the POA will say that the incapacitated person wants the POA to be guardian, if the time comes. If you do not have the money for a lawyer, then you can write a letter to the court.
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I might also suggest that if you have not been involved in your Dad's medical care you call his doctor and get involved. If you address your Dad's care related needs then a guatdianship would not be needed. I don't mean to challange you but I work in cases like this often and I am a mental health therapist and what you are saying sounds to me like you might not be able to see your Dad's decline and your Mom is looking for support.
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This situation sounds complicated. I worry about the best interest of your parents. If your half brother is Trustee then your parents must have a Trust. As Trustee your brother has a fiduciary obligation to act in your fathers best interest and as Guardian your brother is managed my the court. If you believe that your brother is not looking out for your Dad's best interest you can challenge the appointment of Guardian. In this case a professional guardian could be appointed. As POA and Health Care POA have you been addressing your Dad's care without out bias? I do not know your family situation but it sounds it sounds reasonable that a 91 year old who has taken too much medication might need to be in a nice facility that attends to his medication. You don't mention what your Dad's doctor recommended or an evaluation or anything medical about your Dad's care. You mention that your brother has not been involved in 30 years and wanting control of your Dad's money, but sounds like your mother is asking for help with medical care and you might not think your Dad needs help. From what your say here your Mom feels like she can't manage your Dad's care.
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