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Dear Counselor: Tread carefully when managing an elder's finances

My mother is having difficulty with her financial affairs.  She has asked me to take over, but I think that my siblings may have a problem with it.  What should I do?

You are right to hesitate before jumping into the role.  Taking over your mother's financial affairs is a very big responsibility, and California has elder abuse laws that include criminal charges for financial elder abuse.  One wrong transaction and you could be on your way to jail!  Jail!  Now that I have your attention . . . .  My first recommendation would be that you discuss the matter with your brothers or sisters to see what their issues may be.  Sometimes a little communication between family members can go a long way toward avoiding any problems down the road.  I would also set out a budget with them, which may help to educate them on your mother's expenses and dispel any later suspicions that Mom's money was used for your own expenses.

Legally speaking, there are options at your disposal.  The simplest would be a power of attorney for financial management.  In general, a power of attorney is a legal instrument under which your mother allows you, her agent, to act on her behalf.  Your mother can either authorize you to perform designated tasks or give you broader powers.  She can also require that you and someone else, for example one of your siblings, act together.  Keep in mind, however, that a regular power of attorney is only effective so long as your mother is alive and competent.  If your mother wants the power of attorney to be effective during any period of incompetency, then you will want the power of attorney to be "durable," which simply means that it will endure beyond the time when a normal power of attorney expires.  A legal instrument like this along with a power of attorney or health care (also known as a Living Will or Advanced Health Care Directive) and a will or trust typically comprises a part of one's total "estate plan."

If your mother requires serious help with her affairs and is incapable of signing legal documents, then she may require a conservatorship.  Under a conservatorship, your mother, the conservatee, would be under the care and supervision of the conservator (you or another relative).  Conservatorship can be difficult process - to much to cover in one column.  It involves a fair amount of paperwork, and the court oversees the process to ensure that you are acting in the best interest of the conservatee.  The California Courts website (www.courts.ca.gov) provides a wealth of information on conservatorships if this is appropriate for your situation.

Although it sounds like you are healthy and well, I would add that now may be a good time to get your own legal documents in orderYou never know when you may be in the same position as your mother, or worse.  All too often, we lawyers hear that a loved one was just about to get all of his or her affairs in order when disaster struck.  So be prepared.  Having the appropriate legal instrument in place is like wearing a bike helmet: better to have it and not need it, than to need it and not have it.

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