My rightfull inheritance

Jurisdiction: 

Area of Law: 

Question: 

Mother put money into an account for me to inherit with me as POD, can Sister as General POA close this account causing me to lose the POD? I Sister closes this account to consolidate all Mom's assets, do I have any legal recourse to stop her or inherit the money through the probate process. Mom is in advanced dementia and unable to intercede on my behalf.

Selected Answer: 

DakotaLegal's picture

As things stand right now, it

As things stand right now, it sounds as though you have no immediate legal standing compared to your sister’s POA. Your POD, in other words, is not on the same level as a general POD. This is partly because Virginia seems to have a strong preference for using Payments on Death (PODs) as a valid estate planning tool. PODs don’t limit the account owner (in this case, your mother) from canceling the POD, changing it, or spending all the money in the account. It’s fairly likely your sister’s POA allows her to step “into the shoes” of your mother when into comes to using the bank account, and doing the same things your mother could do.

There are also going to be some important facts that will help or hurt your challenge to your sister. When was your sister given the POA---was it before your mother was diagnosed with Alzheimers? Are you named as a back-up POA? Compare the POA being used with the best examples of POAs, especially for seniors. http://www.cvlas.org/

Having said that, there are two important things you can try to do right away, based on your mother’s needs. Either of these two choices means you need to go to court, to challenge or both (1) your sister’s decisions or (2) her powers under the POA.

1. Argue that your sister is overstepping her general powers. This argument might take two forms.

First, that your sister has proven to be irresponsible and unaccountable to her mother and you/other siblings. This also means you have a right to call for an accounting of what she has done with your mother’s assets. Based on the accounting, you may find more questions, suspicious transfers, or what amounts to “self dealing” (dong things to her own advantage, instead of your mom’s best interests). Along the same lines, you can challenge the POA by saying that closing an account is ‘extraordinary’ and not allowed by the POA. The argument here is that a POA can manage aspects of money, but is limited when it comes to actually changing the body or bulk of assets.

Second, your best option will probably involve terminating your sister’s POA and naming the back-up POA. This effort will be a request filed with a court for revocation of the POA. The degree of your mother’s impairment will have to be documented. Always keep in mind, your mother’s rights are the most important legal rights in this case, and there are groups n Virginia to help see to that. http://www.vopa.state.va.us/

2. Challenge your sister’s power by asking for appointment of a Conservator. As mentioned, by going to court, you can try to terminate your sister’s POA. If your mother is now incompetent to handle any of her won affairs, she will need something to take the place of the POA. Because of your mother’s condition, the best course is probably going to be to ask for someone’s appointment as Conservator of the estate. If there are others siblings involved, their input will be very important to changing or revoking your sister’s POA. If the estate is large enough, the court may appoint a paid Conservator. One concern will be the potential for bad blood between you and your sister…she may make your possible appointment as Conservator very difficult.

Finally, what your sister may (emphasize, may) even be a crime, if done to deliberately harm your mother, or her property and assets. Virginia has special investigative units to look into these violations of a senior’s rights. http://www.oag.state.va.us/Programs%20and%20Resources/TRIAD/TRIAD_Fraud_...

If you choose not to challenge your sister at this time, you run a risk of losing control of other aspects of your mother’s estate. For example, if you and your sister should outlive your mother, your sister may become the future Executor of your mother’s estate. It has happened that some siblings actually used their position as Executor to hide assets…sometimes even concealing the will.

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DakotaLegal's picture

As things stand right now, it

As things stand right now, it sounds as though you have no immediate legal standing compared to your sister’s POA. Your POD, in other words, is not on the same level as a general POD. This is partly because Virginia seems to have a strong preference for using Payments on Death (PODs) as a valid estate planning tool. PODs don’t limit the account owner (in this case, your mother) from canceling the POD, changing it, or spending all the money in the account. It’s fairly likely your sister’s POA allows her to step “into the shoes” of your mother when into comes to using the bank account, and doing the same things your mother could do.

There are also going to be some important facts that will help or hurt your challenge to your sister. When was your sister given the POA---was it before your mother was diagnosed with Alzheimers? Are you named as a back-up POA? Compare the POA being used with the best examples of POAs, especially for seniors. http://www.cvlas.org/

Having said that, there are two important things you can try to do right away, based on your mother’s needs. Either of these two choices means you need to go to court, to challenge or both (1) your sister’s decisions or (2) her powers under the POA.

1. Argue that your sister is overstepping her general powers. This argument might take two forms.

First, that your sister has proven to be irresponsible and unaccountable to her mother and you/other siblings. This also means you have a right to call for an accounting of what she has done with your mother’s assets. Based on the accounting, you may find more questions, suspicious transfers, or what amounts to “self dealing” (dong things to her own advantage, instead of your mom’s best interests). Along the same lines, you can challenge the POA by saying that closing an account is ‘extraordinary’ and not allowed by the POA. The argument here is that a POA can manage aspects of money, but is limited when it comes to actually changing the body or bulk of assets.

Second, your best option will probably involve terminating your sister’s POA and naming the back-up POA. This effort will be a request filed with a court for revocation of the POA. The degree of your mother’s impairment will have to be documented. Always keep in mind, your mother’s rights are the most important legal rights in this case, and there are groups n Virginia to help see to that. http://www.vopa.state.va.us/

2. Challenge your sister’s power by asking for appointment of a Conservator. As mentioned, by going to court, you can try to terminate your sister’s POA. If your mother is now incompetent to handle any of her won affairs, she will need something to take the place of the POA. Because of your mother’s condition, the best course is probably going to be to ask for someone’s appointment as Conservator of the estate. If there are others siblings involved, their input will be very important to changing or revoking your sister’s POA. If the estate is large enough, the court may appoint a paid Conservator. One concern will be the potential for bad blood between you and your sister…she may make your possible appointment as Conservator very difficult.

Finally, what your sister may (emphasize, may) even be a crime, if done to deliberately harm your mother, or her property and assets. Virginia has special investigative units to look into these violations of a senior’s rights. http://www.oag.state.va.us/Programs%20and%20Resources/TRIAD/TRIAD_Fraud_...

If you choose not to challenge your sister at this time, you run a risk of losing control of other aspects of your mother’s estate. For example, if you and your sister should outlive your mother, your sister may become the future Executor of your mother’s estate. It has happened that some siblings actually used their position as Executor to hide assets…sometimes even concealing the will.