Court slams adult children jockeying for mom’s cash.
A refrain often heard in Article 81 Guardianship proceedings is : “I only want what’s best for ” Mom, Dad or Aunt Ethel! Sadly, too often that oft repeated claim is a smokescreen hiding the true intent of the speaker: to hold on to the money!
A recent case illustrates how sibling rivalry, avarice and perhaps a lifetime of unreconciled mommy issues can impact, on a most profound level, the well being of and care for a frail and dependent Senior.
The Bronx County Supreme Court (the Court of general trial jurisdiction in New York) essentially kicked the son and daughter of a mother found to be an Incapacitated Person to the curb based on their egregious manipulation of their mother and her assets in competition with each other for their own benefit. (See, In the Matter of the Application of CARYL S.S., Petitioner, For The Appointment of A Guardian For the Person and/or Property of Valerie L.S., An Alleged Incapacitated Person, Respondent.
No. 91809/14. | March 23, 2015.)
In an extensive opinion, the court recited, in detail, the lengths to which these adult children went to control their mother and to get hold of her assets:
- The son took $270,000 of the mother’s money to
- pay down his wife’s mortgage (he didn’t own the house)
- take a trip to Disney World (he didn’t take Mom)
- make improvements to his wife’s house.
- pressured Mom to make a third will to redress what he viewed ad an unequal distribution of Mom’s estate. (NOTE: Mom was still alive!)
- The son also had deeds to extensive property in Connecticut prepared to transfer that property to himself.
- Remarkably, but not surprisingly, the son coached mom about her court testimony and issued directions to mom’s aide not to let the Court Evaluator (appointed by the Court) speak with mom!
- The daughter, shortly after he father’s death(mom and dad had been married 60 years)
- had Mom’s house deeded to herself and Mom with Mom retaining a life estate
- created a Trust to hold $450,000 of the mother’s assets; the daughter and her son were the ultimate beneficiary of that trust
- allowed her son and his girlfriend to live in Mom’s house rent free
- created a Power of Attorney naming herself as Agent
- quarreled with her mother over mom’s will, and following mom’s stroke, arranging for the execution of a revised will that benefited the daughter to the detriment of the son.
- That all of the back and forth between siblings subjected the mother to mental and emotional “collateral damage” and her loss of control of almost all of her assets.
- The Court described the son as “relentless in his attempts to gain control over his mother’s assets”. and found that the Trust created by the daughter was not for mom’s benefit but “used to “park” assets and to protect them for the beneficiaries of the trust to whom the remainder will be paid when the IP dies—i.e, the [daughter] and her son”.
Faced with such avarice, the Court:
- vacated and annulled all health care proxies and powers of attorney
- directed the vacating of the deeds to mom’s house and Connecticut properties
- directed the children to deliver all of mom’s assets to the Guardian appointed by the Court:
- the balance of $157,000 from the son
- trust funds of about $450,000 from the daughter
- appointed an independent attorney as Guardian for mom.
The Sad Conclusion
This case is, unfortunately, neither uncommon nor surprising. The Elderlaw Bar sees this type of behavior on an all too regular basis. The key takeaway:
- think about what you want if you become disabled
- plan, well in advance, who and how you will be cared for
- discuss your plans and feelings with competent advisors and, if appropriate, your family