Craig Reaves, past president of the National Academy of Elder Law Attorneys, practices elder law in Kansas City, Mo., and fields occasional questions from New Old Age readers. Submit yours to newoldage@nytimes.com. Please limit your queries to general legal issues, as Mr. Reaves cannot respond with individualized legal advice. Questions have been edited and condensed.
After my mother died in 2006, my father’s doctor said he shouldn’t be left alone. Apparently Mom had been covering for him. I’d visited seven weeks earlier and had not recognized how advanced his dementia had become.
Their will, stored in a safe, indicated that two of my sisters should manage things if both parents died. So the family — eight siblings in all — agreed that these two should have legal authority. They were added to financial accounts and given power of attorney. No one was in a position to care for my father, so he moved into a care facility, first in Florida, now in Michigan. He’s in relatively good health at age 80, cheerful on most days. He still knows me.
We siblings have had some squabbles regarding the sale of my parents’ house and other issues. Their estate was not large, probably under $350,000; given my father’s condition, it was always a concern whether he could pay for the care he needed.
I’ve requested, from both sisters who are managing things, some kind of statement as to exactly what Dad’s financial status is. These requests have fallen on deaf ears at times and been met with fury at other times. One sister, who’s slightly more forthcoming, recently told me that Dad has about 18 months of long-term care insurance coverage remaining. After that, he has enough money for probably another 18 months’ care.
Do I have any way to compel my sisters to share what I believe they already should have? Friends have warned that their secrecy in itself could mean unethical goings-on. I’m worried that in three years, they’ll ask me for a significant contribution — even greater than a one-eighth share, because some siblings can’t afford to help at all. That would present a wrenching quandary; I’ve accumulated much less myself than the $350,000 Dad started with. He may yet live a good long while, and I’d like to find a way to help my family avoid becoming more anxious about money as time goes on.
Gina
Phoenix
Unfortunately, this is not an unusual story. I strongly suggest that you contact an elder law attorney in the state where your father resides. Every state has its own statutes governing durable powers of attorney, and they can be very different. Whether an attorney-in-fact — meaning the person appointed by the power-of-attorney document to act on another’s behalf — has a duty to keep other heirs and siblings informed will depend on how the document is worded, the applicable state law and the facts of the situation.
Generally, though, the attorney-in-fact owes a fiduciary obligation to the principal (your father, in this case), not his heirs (the rest of the family). Unless the law or the document requires disclosure, an attorney-in-fact is usually not required to share any details with the heirs. She may even be prohibited from doing so.
There may be extenuating circumstances in this case, though, since all the children at one point apparently agreed to contribute time and effort to help their father. Moreover, I’m unsure what you mean when you say that your sisters were added to your father’s financial accounts. It may make a difference whether their names were only added as agents for your father or as joint owners of the accounts.
If directly approaching the attorneys-in-fact brings no satisfaction, and especially if you’re concerned that your sisters may be taking advantage of your father, you can petition the probate court in his county to appoint a guardian or conservator for him.
That not only will provide court oversight but will give you and your siblings access to your father’s financial information. And it will provide a forum in which you can air grievances about your father’s situation. The court will make sure that your father won’t be taken advantage of.
This can be an expensive solution, though, and it is probably a last resort. Perhaps the mere threat of going to court will convince your sisters to be more forthcoming about what they’re doing.
By the way, if your father runs out of money for his long-term care, he should qualify for Medicaid assistance. It generally won’t become his children’s responsibility to pay for his care themselves.
My ex-husband died five months after we divorced. My minor children are his sole heirs. All the accounts and assets were probated, and I was made legal representative. Now my ex-father-in-law is suing the estate for $2,800 in “loans” he made to his son when my ex’s business was slow in 2010.
What proof does he need to provide to demonstrate that this was not just a gift? He may just be trying to hurt me. I’m not sure he realizes, at age 85, that this money would be coming from his grandchildren, not from me.
Dawn
Davie, Fla.
The answer to this question will vary by state, so I suggest that you contact the lawyer who represented you in the probate or an elder law attorney in your community. But generally speaking, if the probate has closed and the decedent’s father knew of the probate, he should be barred from suing to collect on an alleged loan.
If the probate is still under way, the father can file a claim with the court. If the personal representative — that’s you — disputes this supposed loan, the court will schedule a hearing and your former father-in-law will have the burden of proving that this sum was a loan. Normally, that would require a promissory note signed by his son. If he can’t prove that this was a loan, then he can’t collect.
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2012年1月6日星期五
How to Restore Communities Blighted by Subprime Loans
Hill’s latest book Reimagining Equality: Stories of Gender, Race, and Finding Home was published in October 2011.
(MORE: 25 People to Blame for the Financial Crisis)
To begin with, the $10,000 compensation some of the 200,000 Countrywide customers covered in the settlement are entitled to is likely not enough to put them back in their homes, let alone rebuild their neighborhoods. No one is more aware of this than Illinois Attorney General Lisa Madigan. Madigan’s investigation into Countrywide and Wells Fargo Bank began in March of 2008. From 2004 until 2007, at the height of subprime and high-cost lending, Countrywide was the state’s most prolific mortgage banker. During that same period, Wells Fargo aggressively embraced the increasingly lucrative subprime mortgage market as well. Madigan had been tipped off to huge disparities in the numbers of risky loans given to African Americans and Latinos by an investigation conducted by the Chicago Reporter. The Reporter found that African Americans, even those with six-figure salaries, were as much as three times more likely to get subprime or high-cost loans from the two lenders than whites or Asians and that the preponderance of those loans were given out in black and Latino neighborhoods. These practices, combined with the targeting of specific neighborhoods, wound up bankrupting poor working- and middle-class communities of color.
Madigan’s pleadings in a 2009 lawsuit filed against Wells Fargo outline how this discrimination siphoned off equity in neighborhoods until they became drags on municipalities and, over time, the state. Ongoing lawsuits against Wells Fargo in Baltimore and Memphis paint a similar picture and make clear the short-term and long-term negative impact of era’s lending tactics on the safety and security and the tax-based funding of schools in blighted neighborhoods. There is no reason to believe that Wells Fargo and Countrywide were the only banks engaged in such behavior.
Madigan flanked Holder at the news conference when he announced the settlement with Countrywide, which ends the state of Illinois claim against that bank. Yet, as she contemplated “the enormous amount of work that needs to be done to rebuild communities and our economy,” Madigan’s endorsement of the DOJ’s settlement agreement was understandably measured. Illinois’ suit against Wells Fargo continues. In it the state alleges that Wells Fargo broke a number of its consumer-protection and human-rights laws and asks for what could amount to much as $110,000 for every violation of credit and civil rights protections. Unlike the DOJ settlement, that compensates individuals, Baltimore and Memphis ask that a jury determine the amount of compensatory and punitive damages owed the cities for Wells Fargo’s actions.
(MORE: Hill: The Stories I Carry with Me)
Yet, even if Madigan and the cities of Baltimore and Memphis prevail, more needs to be done. Relief is in order for countless other cities which the DOJ acknowledges continue to suffer losses attributable to the reckless practices of lenders leading up to the foreclosure crisis. Ultimately, after the financial market collapsed, the government bailed out the banking industry, including Bank of America, which now owns Countrywide. The industry rebounded because the government concluded that a secure banking system was in the public’s interest. Yet, the playing field won’t be level as long as American communities pay for the corrupt decisions made by lenders. A federal effort targeted at restoring blighted neighborhoods is needed to clean up the mess left behind by such egregious predatory practices as those alleged in the Department’s reports and pleadings. The establishment of a pool of money, drawn from fines for violation of the laws and modeled after the Environmental Protection Agency’s Superfund, to be distributed by the DOJ in collaboration with state and local governments, is also in the public’s interest. The process for prioritizing communities set for restoration and structuring relief could be coordinated with other agencies under the DOJ’s direction.
Speaking before Congress in April 2011, Attorney General Holder acknowledged that “communities of all kinds, in every state, from coast to coast” have been touched by the foreclosure crisis. But Holder noted that “communities of color [had] been hit particularly hard, and [had] suffered greater consequences” as the basis for his establishment of the agency’s enforcement of fair housing laws. Funding to restore the neighborhoods Holder’s team of attorneys, economists and mathematical statisticians have identified would enhance the DOJ’s effectiveness as well as assist state and local governments currently dealing with costs associated with these sites. As importantly, it would show our federal government’s commitment to the protections enshrined in our Constitution and laws.
Hill, author of Reimagining Equality, is a professor of social policy, law and women’s studies at Brandeis University. The views expressed are solely her own.
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