misty

[misty87]

please see below

 

[misty87]

How do I disable my father from handling his financial affairs?

My jurisdiction is: texas

My 79 y.o. father in "arizona" has accepted he does not have the mental skills of managing his own affairs any longer, and has agreed he would prefer me to handle all of his affairs, from a legal point of view. He has agreed I am to discuss with his estate lawyer to bar (taking away) from him having any further control over his own financial affairs, and naming me in his stead. I am thinking this process would not just appoint me his Power of Attorney, as my father is not competent enough to have any access to his own financial or healthcare affairs, but maybe as naming me his "Guardian"? Or him being "My Ward"? I am not sure what this entails. I am seeking some ethical and moral direction from a legal standpoint, so I may stay above reproach, and still be "in-control" of all his financial/healthcare affairs (per his self-disclosure of realizing he is not competent). Does anyone have any simple advice as it pertains to their own experiences, and perhaps give me an example as to what options I may have with this type of situation in mind? Presently, I am an "initial trustee" of his "living trust", but so is he (including him being "trustor"). By his own admission, he is spending himself broke, and maybe has 5 years of savings left if he does not have access to his own funds, and maybe about a year or two if things remain the same. Thank you for any replies.[/QUOTE]

 

[dee_dub]

Simplest thing to do would be for him to grant you enduring power of attorney (it continues even if he is incapacitated), and then have himself declared incompetent to manage his own affairs. That will leave you soley responsible for his finances. I suspect it may be difficult to have him declared incompetent - spending yourself boke isn't necessarily incompetence. People are allowed to make foolish decisions. He needs to show he's fundamentally incapable of making sound decisions.

He could arrange the trust differently so only you have the power to take funds from it.

He could gift his property to you. That takes it out of his hands.

 

[misty87]

I understand what your saying...As an adult he can spend all his money. But in the last 90 days he spent over $30,000. He regrets this and doesn't remember what he spent it on. I went through his bank statement with him and he just looks at me and says "I need your help". But the very next day he spends again and says, "I can't help myself". For the last month he has said he wants me to handle everything and wants me to be in total control. He will be bankrupt in less than a year at this $30,000 rate. He has been diagnosed with "Bi-polar" by one Dr. He was angry with the diagnosis and paid another Dr. over $500 to say nothing is wrong with him and he has no disorders or mental issues. His moods change on a regular basis, one minute he is sweet and thoughtful and the next angry and a "rage-a-holic". He has even threatened suicide several times. But a day later is fine and loves life. I am a little tired of the emotional roller coaster he is on and I am worried he will self destruct. I have been told to cut all ties with him and let him live his last days without me in his life. I spoke to a trust lawyer who said I could have him declared incompetent on the "Bi-Polar" issue. But he warned that "your father will hate you". Its a difficult situation for any child to go through.

 

[dee_dub]

It is a difficult situation, and I sympathize. I'm not sure I get the impression he's "accepted" that he's incapable of managing his own affairs - his rebellion against the notion of incompetency, for example. If incompetency won't work, but he DOES legitimately want to cede control of his finances to you, he should remove himself from the trust so you are the sole administrator.

 

[misty87]

To know what process is available to me on his behalf (from a legal point of view), and to get my notes in order for a meeting with his estate planning attorney (who believes fixing my father's "mess", as his attorney has said, will cost my father more than the original trust document fees of $3500). Please allow me to explain the path I need to take from your last input.

My father and I have come to agree making me his confidant as sole trustee (him as beneficiary), giving me enduring power of attorney, amending his existing trust as irrevocable after these necessary changes. Additionally, he will cede control volunteering himself to be declared incompetent to manage his own affairs (if it is legally possible to volunteer this). Hopefully in doing so, it will avoid him making consistently unsound and irrational decisions.

To the extent of having himself declared incompetent (either by volunteering or by process, i.e., by psychiatric exam, etc.), perhaps a "Living Trust" is no longer warranted because he no longer has significant assets. Perhaps considering making him a very simple estate plan showing him as my "ward", or my being named as his "permanent guardian" would be more suitable. I don't know? I am walking in no-mans land on this.

Please understand, my father feels he can no longer make good decisions and feels he makes the wrong decisions, and feels his choices have caused him personal and financial harm, and he does not trust his own abilities. My father is fundamentally incapable of making sound decisions.