My brother put his name on my mother's savings account. There is over 50K gone which he used for himself. She still has 75K left in savings, rents an apartment, and owns no other assests (currently lives on SS).
My mother ended up taking his name off the account after noticing the money was disappearing. Some of the bank withdrawal slips appear to be forged. I don't want to press charges but I'm worried of what will happen if she needs NH care within the next 5 years.
I need to speak with my sister also to see if either of us wants to become DPOA. I'm afraid that if one of us now does this we could be liable for future NH bills if we are disqualified.
Not sure what to do or how to protect her. Thanks
If she needs to go to the NH within five years, she will first of all need to spend down her 75K in savings. Since your brother's name was on the checking account at the time he took the money, it will probably matter if he signed those withdrawals or if he forged your mother's name on them. If her name appears on them and she need medicaid by that time, they will consider it a gift from your mother to him and her application will be postponed until the sum of the money he took is paid on her care.
As financial or medical POA, you will not be liable for future NH bills unless you sign something that says you will be responsible for payments.
Also, you both need to talk with your mother about who she would like to give POA to and let it be her decision for she is the only one who can give it. Have a lawyer draw it up so that it agrees with your current state laws regarding it, have her sign it and have it notarized.
Also, what is the state of your mother's health? Most importantly, what is the state of her mind? Is she competent to conduct her own business in a business like manner?
Also, pray that your mother does not need a nursing home any sooner than past 5 years from when your brother took that money or you will likely have your hands full.
I am so glad that we can edit our responses!
I don't think she wants to press criminal charges. It sucks my brother was taking all the money and my sister and i will have to pay it back if/when she enters a NH and he didn't even need it.
Can my sister and I sue my brother for the money and lawyer fees? I don't see how this is going to end well. :(
Would this now mean we would either need to pay back the 50K or care for her at home until the penalty time is over?
If you are your mother's durable POA and she is not able to, you just might be able to sue your brother. If she is competent though, she will need to be the one pressing charges I believe. You really need to ask her if she wants to press charges. BTW, who is the durable POA?
One more thing, I'm assuming money spent on an attorney for this is a justfiable expense so that's not included in the look back? Thanks
I am going to consult with an elder law attorney this week. Unfortunately I believe my relationship with my brother will be non-existent when this is all over. :(
Yes, money spent on atty is a justifiable expense. What is your mother waiting for. She should contact a lawyer tomorrow and go make you or your sister or one of you and the other being a secondary back up durable POA.
I think your brother could also be charged with negligent behavior concerning his mother's money as her financial POA.
Get the durable POA changed as quickly as possible while she is still competent to do so.
The transfer penalty is basically a math (division) problem; each state has a specific daily rate paid to the NH for room & board costs - this is the divisor. Average is about $170 a day. The amount gifted is divided by this figure. So 50k in a $170 day rate state is 294 days of ineligibility. Penalty is by # of days.
My understanding is that the Penalty cannot start until they have applied for Medicaid and would be eligible if not for the penalty. That’s one of the real stickies in dealing with penalty. It can’t include the months they are amidst their spend down (like your mom has 75k in savings so she can’t apply till she’s at the 2k mark for nonexempt assets).Penalty only can be placed once they have applied for Medicaid as the date of the Medicaid application starts Day 1 of the 5 year look-back which discovers the transfer.
There have been others on this site who have had this situation. What might be a way is for you as new dpoa to contact APS to run an investigation on brother as dpoa taking advantage of a venerable adult. He as dpoa was not doing his fiduciary responsibility. It’s something for your mom to discuss with the atty.
There were also many bank withdrawals that were taken out with what I believe are forged withdrawal slips (going to the bank tomorrow to find out).
"Penalty only can be placed once they have applied for Medicaid as the date of the Medicaid application starts Day 1 of the 5 year look-back which discovers the transfer".
So, you cannot apply until you exhaust your savings?
Then you apply and it starts Day 1 of the 5 year look-back?
So, if she became sick 4 years from now but is able to pay out-of-pocket for 1 year then she would now be beyond the 5 year look-back for my brother's expenditures? BUT, if she becomes sick 3 years from now, only has money for 1 year and needs to apply, the penalty comes into play?
Correct on the above?
Either way I may need to contact Adult Protective Services but am def contacting elder attorney and looking into poa. I am also requesting to see a copy of her current will.
Mom has to be the one who decides who is POA and how she wants her money handled ( I'm assuming she is of sound mind).
What does your brother say about the money?
You don't want to accuse him falsely, only to find that mom is doing something weird with her funds ( sending money to African princes or cat shelters). Don't laugh...It happens. Folks who seem totally with it suddenly accusing one of their kids of stealing money, getting the siblings riled....ask your brother directly what's going on.
If he's been siphoning off funds then reporting him to APS and the cops is probably the right thing to do, even if mom won't press charges. You want there to be a record that funds were stolen.
Whatever the outcome, your mom needs her funds secured so that they are not so easily accessed. How are they currently held? Have you thought about a CD ladder? Make sure you talk to her bank about putting a fraud alert on her accounts and think about freezing her credit through the three big credit reporting agencies. Run a credit report to make sure no accounts have been opened in her name.
Just to clarify, if the majority of money was "removed" in 2016 but small amounts were removed 2017-2018 the look-back still only goes 5 years? So if mom makes it into 2021 then 2016 is not counted? I can ask today, I just like to understand first. Thanks
I think it's worthwhile to investigate what happened to mom's money, especially if there is a possibility that it wasn't brother defrauding her.
The thing is. Your brother's using your mother's money without her knowledge but with the consent implied by her having given him access to her account is one thing, a civil matter. But forgery isn't. It is a crime. You wouldn't be suing him, he would be prosecuted. And being prosecuted for forging your elderly mother's signature and robbing her would not sit well with being the kind of respectable upright citizen your brother otherwise seems to be.
So surely, in fairness and to avoid unpleasantness, the first step would be to get the bank statements and related paperwork together, call him, and go through it all?
It's not impossible, is it, that your mother's understanding of what took place is incomplete and he will be able to satisfy you that nothing untoward went on? For example, he may have tried to explain to her about spending down AND at the same time have been settling bills for her, all the while trying to soothe her anxieties about her dwindling funds. You do need to know - and it's not a rude question - exactly where the money went.
Reassure your mother that it all just needs clarification and no one is accusing anyone of anything, and then see where you get to.
Just to clarify, if the majority of money was "removed" in 2016. If mom makes it until 2021 then the larger amount of money will not be counted? In other words (over the 5 year mark).
I'm pretty sure mom is not going to want to pursue legal action. My sister and I will also be talking today. Thanks
My brother was mom's POA and is the executor of her estate. He and my SIL are well to do. His name was on mom's bank account.
Yes, they have two fabulous houses, several nice cars and give to charity. With THEIR money. I never for a minute think/thought that anything was not on the up and up, because we trust my brother and his wife. If mom had said " I think P is stealing my money, look, here's my statement, where is all my money?", I would have called my brother and asked how he wanted me to answer her. Not suspected him.
Has your brother given you reason for mistrust? How are mom's bills getting paid?
And yes that’s the rub.... so in order to be eligible for Medicaid they need to be basically impoverished. That’s usually 2k in non exempt assets for a widow or widower. So say they went into the NH Jan last year and now March this year are down to their last 2k, so dpoa files Medicaid application. The lookback goes from March 2018 to March 2013. And back in 2014 mom closed out 2 10k CDs and nowhere in her bank statements do they show up as a deposit. So Medicaid can do a transfer inquiry on these. If you can’t find something reasonable that $ went to (signed over to pay for new roof) then a transfer penalty will be issued. 20k at $170 any R&B is 117 days of ineligibility before Medicaid will pay. The sticky is that she’s already impoverished and in a facility. They get penalty notice from Medicaid too. So someone in family will have to private pay for her care if she is too continue to reside in the NH. Otherwise NH can issue a 30 Day Notice & either she moves out and into one of the kids homes or if it’s ignored then APS is contacted to get an emergency ward of the state done. Guardian appointed and they are in charge. Stuff like this snowballs as guardian - as they are court appointed- can have APS do an investigation on Brothers taking advantage of a vulnerable adult, embezzlement, whatever and go to the mat in charges against him. You could use this as leverage in dealing with Bro.....
For my mom’s Medicaid application, I had to turn in a on bank letterhead and signed by bank officer itemized listing of all accounts closed within the past 5 years. Mom had CDs & Tbills, and as they expired instead of rolling them over, they went into her main checking account. So the letter read like CD#12345 $5678.00 expired 1/11/10 deposited 1/11/10 into checking account #98765 $5678.00. If there had been 1 MIA I’m sure there would Le have been a transfer penalty inquiry. Really all their financial will surface eventually as it’s tied into their SS# and between that and Medicaid having their awards letters they know what their housing/Living situation is and have a formula as to how much $$$ they should have available as spend down resources. That 50k mia will surface.
I think my brother's initial intentions were to pull small amounts to not trigger suspicion and hide money for whatever reason. There were also a number of times where money was clearly spent without mom's approval.
Mom says she would be happy to get half back and she is going to call him and ask him herself. This won't help with the medicaid issue.
I would just like to send him a notified letter stating he either returns all of the money or to expect a subpeona to court. I don't care if I ever have a relationship with him again but I also don't want him to get in trouble legally. this sucks
Perhaps your brother thought he knew what he was doing, based on " I heard that" advice. He wouldn't be the first person who tried to avoid paying for qualified legal advice.
Good brothers are a rare commodity. If you can reach out and set him straight, try to do that.
Bank records are not adding up. I have my mom's net worth from savings/checking accounts prior to bro having himself involved in her finances.
Here's what I have. Bro closed her savings and checking accounts and opened new ones with his name on them. A few months later a 40K insurance check was deposited into one of her accounts.
This account was drained over time by electronic transfers, personal checks, and withdrawals (i am guessing bro was trying to hide money from Gov?). Some of this money was going directly into bros checking account and some into mom's other account. Mom was told she needed to keep her finances low.
When mom complained about not having money in her account bro put the money back into her opened account but was 40K short (appr insurance check amount). When Sis asked Bro about this he said he never knew the insurance check was deposited. I didn't notice either until I reviewed all records so maybe mom put it in without telling him.
There is a second issue that has occurred. Since the time bro put the money back suspicious withdrawal transactions were being performed over a number of months. Mom denies making most of these withdrawals and I know she didn't need the money. Maybe she is confused and was taking the money out and hiding it or maybe someone else has coerced her into taking the money out.
According to Mom she eventually spoke with a bank branch officer and they said it appears suspicious and suggested she open an investigation. I am planning to speak with the branch manager myself to find what their practices are for withdrawaling money or what my options are for following up on these transactions. Maybe a teller has some insight on this also.
I will not be able to get to that bank for a few days. I really hope this is all an honest mistake. Mom may have pulled the money and is hiding it somewhere too. I believe we will have answers I'm just not sure when.
Give some thought to getting a forensic accountant to put together a report on mom’s finances for the past 5 or maybe 7 years. Specialist CPA work. Finding one maybe sticky. The pit bull divorce attys will have some they work with & regularly. I’d ask your elder law atty as to who those attys are and call for a forensic accountant referral.
Plus You can use the forensic report for the guardianship hearing.
So is it morphing to missing money involves both Brother & mom’s actions?
Thank goodness your dealing with this now while mom still has 75k to get proper legal & accounting done & in advance of any Medicaid application.