Can I use my mother's funds to pursue guardianship?

If your mothers funds are joint with you yes as you are legally entitled to these funds and can use them for whatever you want. Otherwise, no. Think this through, you are wanting her to pay for her own contested guardianship, doesn't fly.

Well - the lawyers who recommended you apply for guardianship ought really to have answered this question for you, don't you think?

But here's my best guess: if guardianship is necessary to protect your mother's wellbeing because you cannot take the steps you need to take relying only on your existing powers of attorney, then yes you can use her funds to make the application: you would be pursuing this course solely for her benefit, in her best interests, to protect her from harm.

Run this argument past the lawyers you plan to hire, and ask if there is a risk you could be left facing costs.

But what do you need to do as her guardian that you are unable to do with your POA? And what is your mother's current mental status, legally speaking? Does she or does she not have mental capacity?

Also, you say "contested guardianship." Who's going to be the other contestant? Your mother? Your brother? Both?

Roxy, unfortunately this isn't a question that can be answered directly,   It depends on the wording in the creation documents.   And that depends on the attorney who drafted them.   

Just some things to consider:

1.   Authorizing documents drafted by knowledgeable, reputable practicing attorneys are based on  up to date case law and legal issues and any applicable case law.    And attorneys who know their clients well can factor in potential situations.

When you sought guardianship advice, did the attorney advise you in general or specific terms whether or not the POA documents authorized expenditure of your mother's funds for guardianship proceedings?

2.   Internet document forms are wild cards; unless you know specifically who drafted the documents for mass use, as well as that person's background, you don't know if you're even getting anything worth using.

I raise this b/c an attorney acquainted with your mother's situation might have included specific provisions for this kind of situation.

3.  However, there may also be state laws addressing use of parental funds for pursuit of guardianship.   And there may also be provisions allowing this under certain circumstances, such as the presence of an addict in the parent's residence.    This could fall under the category of protection, safeguarding, your mother's health and welfare, etc.     And in my experience, there are general clauses allowing the proxy (you) to use funds for this purpose.

So it's not an easy question to answer. 

What I would do is contact the attorney who drafted the documens for a meeting to review them  and determine what specific authority you have, including in potentially unsafe and threatening situations, and obviously, use of your mother's funds to protect her.

The attorney should also have experience in, or be in a firm with others who do have experience in guardianship and conservatorship actions.  Knowledge of local courts and judges is immensely helpful.   Perhaps the attorney you consulted has partners who can help with interpreting the scope of the authorizing documents.

4.   A major concern given the fact that a sibling is a significant problem is whether a judge would award guardianship to a requesting sibling.   Determination might be made that an independent guardian would be more appropriate.

If that happens, you can anticipate that a guardianship is going to be expensive.  When I last worked at a firm that nominally handled guardianships, typically attorneys were appointed as guardians, and billed at their professional rate (think upwards of $200 - $300 and more per hour.   Some attorneys even decades ago billed out at even higher than that.) 

So, your mother's funds could be exhausted much more quickly.


But, what CAN you do in this situation?

1.   It's her house; your brother is the invader, and is addicted.   Do you know what he's using, i.e., street drugs, or is he hooked on medical drugs such as Oxy?   Has he ever been reported and/or arrested?   I'm assuming he wouldn't voluntarily consider getting treatment?

2.   I would contact local police and ask what can be done to remove him permanently from the home.   If they can't help, ask for referrals to someone who can.   Don't give up; this is too big an issue to let pass.

3.    If you can't get him out of the house, even through eviction (he is in fact a negative influence on your mother), try to locate people in the addiction resistance field who can help guide you to getting assistance for placing him elsewhere.  

You can also call anti-drug agencies and support groups directly.
If you can do that, ask the local PD or county officials about getting a restraining  order.

He's not the only issue addressed in your post, but he's the biggest.   Work on that first, then the issue of her denial.

(running out of space; post back if you want more suggestions.)

Roxy, I didn't have enough room in the answer box to address this last issue of your mother siding with your brother, but it's something to consider.  

If your brother were evicted, how do you think your mother would react?  Would she turn against you?  Has anyone addressed the possibility of her denial b/c of the diagnosis?  

Over time I've found that confronting someone with a negative diagnosis can sometimes be worse than just not mentioning the issue.  Your mother needs help, but is it necessary to address her dementia?  At this point in my life, I'd say no...but address her behavior, health and other issues that can affect her daily life.   

Good luck, and please let us know how you proceed.

I think this is a question for Medicaid, if Mom needs it in the future.

I think you can use Moms income for guardianship. Its protection for her.

Do you have a doctor's statement that your mother is incompetent?

With a doctor's statement of incompetence and depending on the POA language you may be able to evict your brother, sell the house, and place your mother in AL.

Since you will also need a statement of incompetence to be awarded Guardianship, I would start with getting the incompetence statement. With the statement in hand, the only issue will be who is the guardian.

roxynicole1, It was not my intention to be condescending, I was just trying to logic it through. Sorry if I upset you, I should have expressed it differently.

Here in GA, I was told by an elder care attorney that we COULD use Mom’s money to apply for guardianship, BUT if she contested AND we lost, we would have to reimburse her.

For other reasons, main one being Mom finally decided to give us financial & medical POA, we decided not to go that route. I have not read all the responses, Have you contacted APS? You can make an anonymous complaint that a drug addicted family member causing your Mom (with dementia) distress & they will investigate her situation.

Thank you all for the thoughtful suggestions. There are so many moving parts it makes my head spin. With regard to my brother, I feel utterly helpless. He has been addicted to everything under the sun for over 20 years. Heroin and cocaine being his preferred substances. He is a master manipulator who knows exactly what to tell my mom to string her along. Most recently she paid for his defense attorney in a case where he stole her car, used her debit cards without her permission and had drugs in his possession. She was brave enough to initially press charges, but then freaked out and hired the attorney. This was his third felony, but instead of jail time, he was sentenced to drug court. We were told that drug court drops the hammer hard if the participant steps out of line. Well, once again, the legal system is failing us. My brother dropped out of the program after a couple of months. There is a warrant for his arrest as a parole absconder, but no one will arrest him unless he comes into contact with the police for some other issue. I have spoken with the police, with his parole officer etc. They are all aware he is taking advantage of a vulnerable adult. Still, no action. As for kicking him out, that will be a years long process. The only option I believe I have is some sort of protection order, but that is more lawyer's fees etc. that I can't afford.
Our POA docs were drafted by an elder law attorney, and the attorney I have been speaking with about guardianship is from the same office and specializes in these issues. I probably need to pay for a couple hours of his time ($325/hr!!) to find out if there are other options via the POA. This is so maddening in its complexity.
My mom is declining rapidly, but can appear very lucid to those who don't interact with her frequently. I do have a concern that the courts will side with her. I have been gathering photos of her living conditions and have neuropsych documentation stating she should not be living alone. I believe her primary care doctor will support that as well.
I have no other siblings. My mom's siblings are supportive, but all out of state. My mom and I have always been extremely close, but all of this has changed that dramatically. I am exhausted from doing battle with my mom and brother on a daily basis in an effort to protect her. This of course is not how I envisioned my mom's later years. And it breaks my heart that she is missing out on so much due to her stubborness and poor choices. Her dementia will continue to progress rapidly as long as she is surrounded by chaos.
On the flip side, I am blessed with an incredibly supportive husband and kids who bring me a lot of joy. I know I am fortunate in that regard, since so many are dealing with the stress of aging elders AND stress at home.
I really feel for and empathize with everyone on this forum. None of us planned to be here.

What does guardianship permit you to do that the two POAs do not. (another of those different US / UK situations - so trying to understand what benefit guardianship would give you - Thanks)

roxynicole1 thank you so much for your patience in answering us as we tried giving you our best!   As time allows let us know how this all plays out!  God Bless you for caring so much!  Will be praying for you and yours!!

Our situations are similar, so I thought I'd share. I'm sure that things vary state by state - my mom is in Iowa. I have two siblings, but one is my drug addicted, unemployed brother, who takes advantage of Mom. Luckily, he was not living with her when things really turned sideways with dementia. My sister lives in town and when Mom was at home, she had financial and medical POA and took care of bills and medications and other health issues like doctors. Mom was living by herself, but we had in home care coming in twice a day. Mom started getting more paranoid and violent. We tried talking to her about assisted living, but she was having none of it. She started calling the police on my sister, the caregivers, and the hallucinated guy who lived in her basement. The caregivers started pushing AL and a neighbor called DHS for a denial of self-care claim. Mom was calling the bank trying to get sister off of accounts.

We consulted with Mom's attorney who set up the POA who told us about the guardianship/conservatorship, but said if we could avoid that option, we should. So we held off. Just a couple of weeks later, it had gotten to the point where we knew we had to go through with it, as she had kicked my sister out of the house and was threatening caregivers with knives and scissors. Mom had called her lawyer to complain that we were trying to move her against her will, so he referred us to another lawyer to prevent him having a conflict of interest.

We had to pay the retainer up front from our own funds, but then if we won the case, we would be able to pay all fees from Mom's estate, including paying ourselves back for the retainer, but just FYI, that takes a LONG time. We did an "emergency" hearing, which meant that we could move quickly because Mom was a danger to herself and others, but it only gave us a temporary status. We had to go back to court to get the permanent status.

Things to keep in mind:
1. We had a lawyer, Mom had a lawyer, and there was a third lawyer, an attorney ad litem, which is an attorney for the court, essentially there as an independent investigator looking out for Mom's best interests (I believe part of this is Iowa's strict laws to protect the elderly).

2. Mom had to be served with the paperwork and had the right to be at the hearing.

3. The judge ruled that she would have to move into AL, BUT we still weren't allowed to physically move her without her consent - we tricked her to get her there and that was acceptable, but if she had refused to go in the car with me, we would have had to involve the police, taking her to the hospital for a psych evaluation and then they could transport her directly to the AL. This is the type of thing where I don't know how your brother living in the house already will complicate things.

4. Before the permanent hearing, we had to formally notify our brother of our petition through the lawyer. He had a right to contest us (and did). Our lawyer told us not to worry about him; he didn't have a lawyer as he couldn't afford one and was likely high on the stand, so really hung himself. Having a record didn't help him. We still can't prevent him from visiting her and he occasionally tries to take her out of the facility, but at least he can't swindle any money out of her. We changed the locks at the house the first day we moved her out, so now, even if he had a key before, he would have to break in and we could call the police.

5. There is a TON of paperwork. It isn't just the hearing, but with the control, there is an annual guardian report (medical) and annual conservator report (financial). We have to account for every penny we spend from her estate and everything must be in her best interests. There are no gifts/donations anymore. We have to get court approval to sell her house or for any major life change - even moving her to the more secure memory care area of the same AL she is in now.

It's tough, but the legal protection is good.

I have had guardianship of my dad for almost a year and his funds paid for the process for both his and my attorneys. He contested the guardianship but neither attorney wanted him to go before a judge so we made a stipulated judgment with certain rules that he agreed to. Now we're at a point where he really needs to be moved out of his house (he's 93 and still lives on his own). We have care that comes in but the hours need to be stepped up. We're over $6000 per month between the caregivers and care manager (I work full time so we have help!). I would like to move him to assisted living. The cost would be about $4500 per month plus buy up for special services he needs. Probably totaling about $6000 per month plus some help from the care manager or a care person to get him to his doctor appointments (He can't go on his own anymore). I think he would really thrive. He doesn't get enough social time with others. He loves sitting and talking to people and having coffee. His house is dark and old and he spends too many hours there by himself. But I have to go to court to move him. He will get served papers which will start a HUGE fight because he does not want to move. I need notes from doctor(s) and present my case to the judge. We may lose and then I will be forced to increase his hours which will cost $10,000 per month plus to keep him at his house just because he is too stubborn to move. Being a guardian is a lot of work. It is a lot of time, it is a big mental strain, and has taken its toll on my marriage. I have wanted to quit many times and give this to someone else but I keep plugging away. I have 3 other siblings who do nothing. I am under a great deal of pressure to be sure he has what he needs. I work full time, married, have my own house, my own cars, yet I am also responsible for his house, 2 cars (he doesn't drive anymore but the care people drive him), and anything else he needs plus dealing with the care service and their demands on me that I'm not doing the right things. I push back and push back while trying to keep a 'normal' life for myself. This is taking a big mental toll on me and I would tell anyone to think about what they are getting into if they take on a guardianship. Remember, you are totally responsible for making any and all decisions about your protected person.

When I was applying for guardianship over mom and dad, the courts allowed me reimbursment of all my expenses. I had to keep all of the bills and documents proving what the reimbursements were for that I was requesting. I did have an attorney to get throught the process, and her fees and expenses were paid out of mom and dad's funds.

Whew I believe you can use her money if it is in her best interest and it looks like its in her best interest .grown son needs to grow up .I mean its for her and her best interest! Call a lawyer..