QUESTION

What are my rights to securing Father''s POA/Exec of Estate''s acctg records of Father (Trust in POA/EE''s name; no Trust in Father''s name)? Thank you.

Asked on Jul 28th, 2012 on Elder Law - Missouri
More details to this question:
My Father had a Will, but no Trust. My sibling was the POA and is the Exec of the Estate, having a Trust in his name on behalf of my Father. Does my sibling''s Trust overwrite my Father''s Will? The atty who prepared the Trust advised this sibling need not provide any acctg/receipts pertaining to my Father (to the heirs of the Trust). Is this accurate? And, basically the sibling is allowed to spend my Father''s income/monies on himself (coin collections, magazines, products, home repairs for sibling''s family home and has a right to keep my Father''s vehicle/ furniture, jewelry, etc.)? Trust dated 2009, but atty provided a general statement summary of costs associated with home (repairs) 2 mos. ago (when home was sold). And, legally this sibling has a right to charge up Father''s credit card with sibling''s own personal expenses (w/out sibling''s name added to the card acct)? I have requested all itemized receipts,copy of deed (sale of home), yet nothing has been provided by the atty. (su
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1 ANSWER

nathan forck
It depends on the circumstances surrounding the creation of the trust and the trust language itself.  Assuming your father had the capacity to create the trust in 2009 and there was no undue influence on behalf of your sibling, I would then move to the language of the trust.  If the trust gives your sibling the authority to do what he is doing, then I don't know that you have any particular remedy as his heir to challenge this.   I also don't know why your sibling would have any legal obligation to provide receipts to you unless you are a current beneficiary of the trust.  Would your father have to provide you receipts for what he was choosing to spend his money on?  No.    Having said the above, this all goes out the window if there is elder abuse that is occurring.  If you truly believe that your sibling is exercising undue influence over your father with respect to his finances or that he didn't have the mental capacity to create the original trust, you can certainly contact the MO Department of Health and Senior Services to file a claim for elder abuse as well as file a claim in civil court contemporaneously with an action to have a guardian/conservator appointed for your father.  I think that that is an absolute last resort as there are a number of issues with guardianship/conservatorship that might actually make the current situation preferable.   But remember, if you believe that your father did not or does not have capacity, the court's presumption is that your father has capacity and you will have the burden of proving that he does not.  I would be very hesitant to exercise this option unless and until you consult with an elder law attorney who can more closely examine the merits of your case.  
Answered on Aug 09th, 2012 at 12:32 PM

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