What is a last will and testament?

You need to consult an attorney - barring that, you can call the bar association and ask for a list of lawyers who will do first consult for free.

I am sorry to hear you are facing such a challenging situation and, as you are learning, one of the most important aspects of elder care planning is making sure the correct documentation is in place.

There are two aspects to handling your parent's affairs; while they are alive, and when they are deceased. A will, and the segment you quoted above, only operates upon death. To handle the affairs of a disabled or incompetent parent while alive you need to be named as attorney in fact via a Durable Power of Attorney or you could act as a successor trustee if assets are held in a revocable living trust.

So the first question is: Do you have a Durable Power of Attorney? I'm assuming "PG" means Personal Guardian which is what happens (guardianship) when an incompetent or disabled individual does not have proper advance paperwork. If your mom has a guardian then I'm guessing you do not have proper paperwork in place to handle your father's affairs and, just like your mom, a court appointed guardian may be required.

As far as what the guardian is permitted to do, typically their activity is very limited in scope in terms of what he/she can or cannot do with assets/income and is also closely monitored by the court. You can always go to court to protect your father's interests but you will have obtain standing via guardianship or one of the documents mentioned above.

Most importantly, if Dad is on Medicaid you do not want him to inherit anything of value that will potentially disqualify him from benefits.

Mr. Robbins,

Thank you for your input! I am guardian and conservator for dad. I was mom's but she has a court-appointed public guardian and conservator now. Dad can have up to $2,000.00 in assets, and still qualify for Medicaid, from my understanding. If mom died, all would belong to him. What do I do about that? If dad dies, mom gets all, and I can protect nothing, I assume? But I am named as Executress for both upon death. Can I still do a trust for dad's half in the event something should happen to mom? He is incapacitated by reason of Advanced Stage Alzheimer's Disease and can consent to nothing. Mom is incapacitated by reason of "mental deficiency," or the diagnosis of personality disorder (NOS). Nevertheless, her judgment is off, and needs/wants a conservator/guardian to handle her affairs. She understands none of this thoroughly, as dad cared for her all their 52 year married life. So, I am his legal representative, and want to protect what I can, and I am her daughter/advocate, as I don't believe her needs will be adequately met through her PG. They got some quack to say she could make some decisions. (Little do they know she can't.) Mom's court-appointed "investigator" became her attorney, and dad's GAL became mom's Guardian (which all seems a conflict of interest to my attorney and me). I believe they'll be taking advantage of their position and her cognitive deficiency. My attorney since took the money and left "for Christmas." Don't think we'll get any action/satisfaction there. Wish I had some legal help, and don't know where to turn... My State Trooper friend says I need to write the Judge and ask for his guidance, though I'm not sure he'll be receptive to me, as his "star attorney" wasn't real nice to me. Expecting the worst, but not beyond hoping for the best. Any ideas how we proceed from here?

Additionally, my only sister has already started taking some of the heirlooms to her home. I didn't feel I could do that as Conservator, but was supposed to protect them from greedy and covetous individuals. Now it seems my sister wants my mom to give her everything, claiming "the good daughter..." Can my mom give everything away, with the help of her new guardian and conservator? What is my dad's guardian/conservator to do to protect the estate from dissipation? If mom gives away, then needs to go into a nursing home, won't that disqualify her, and perhaps my dad as well? I think my sister should just wait for her inheritance, and quit coveting something mom may need for her future needs. I'm feeling protective, because I don't want the PG to dissipate the estate in "legal expenses" handling their affairs. What can I do to protect it all from going away?

Your state trooper friend is not so off base when he speaks of approaching the judge. More accurately, however, you will be communicating with the judges clerk. Some jurisdictions are very pro se friendly and will guide you as to obtaining what you desire.

You have quite the mess on your hands in that here you are trying to do the best for your parents as a unit and yet you have all of these competing interests. I wonder why you were and are not now mom's guardian? Don't really need to know the answer but I do know that if it were me I would petition the court to be re-appointed her guardian. Between her attorney and her guardian there will be no money left to take care of her.

Speaking of money. If you are contemplating Medicaid benefits for either or both then testamentary documents will have to be redrawn so they each disinherit the other. (This is one of the reasons I would really like for you to become mom's guardian as well. Many states have "elective share" rights where the spouse, even if disinherited, has the right to pursue a portion of marital assets. If an attorney and/or guardian other than your dad's is representing mom's interests they may be legally compelled to go after the elective share regardless of the impact on dad.)

Ultimately, you are going to have to come up with a plan and have it approved by the judge. If it were me I would do two things. First, attempt to have myself appointed as guardian for both parents pointing out to the judge your competency, the untenability of the current situation, and your concern over the dissipation of resources (in that order!).

As far as gifting is concerned, nothing should be leaving your parents possession at this point in time as you are correct in that all gifts will affect Medicaid eligibility. Even though they have separate representation they are still married and subject to the rules as such.

If your sister continues in pursuit of these items it will be incumbent upon you to protect your dad's interests by notifying mom's guardian and/or the court.

Mr. Robbins, it is indeed a nightmare of a battle. Mom's Personality Disorder sees me as her adversary rather than her advocate, and she requested a new guardian/conservator. Like I said, she understands none of this, thinking she's "won" something, and that this new guardian will grant all her wishes and desires. I suspect they will take advantage of her angst against me, lack of understanding and bleed her estate dry. I hear nothing but rotten reports about mom's new attorney from reputable sources. A good friends lost $40,000.00 recently in a lawsuit due to him. I think they see opportunity, and are using mom. Mom is paranoid, bitter, angry, and doesn't know she's been sold down the river with no paddles. She's chomping at the bit to annihilate me, using lies, rumors, accusations of abuse, libel and slander. Mom hasn't a clue they're using her to accomplish their ends. I fear the worst, hope for the best, but really don't expect anything good to come from this. My State Police friend called mom's attorney a less-than-flattering name, and I stand amazed at his evil tactics pitting family member against family member. It's ugly. We also have a judge who "investigated" mom's false accusations, then turned attorney in the case against me. Talk about conflict of interest! And the PG was my confidant for over 1 year and 1/2. Now they're my enemies. My attorney calls mom's the judge's "star," and seems they have ulterior motives. Sounds like a bad film doesn't it? (I don't even watch TV.) Can't even tell you how it feels they are violating us. They have a "pet" psychiatrist, too, who claims mom can make decisions. My question is this: Is she incapacitated or not? If not, she doesn't need a guardian. If yes, then how can she make decisions? OK, so she can pick out what color shirt to wear today...that's not criteria for making decisions that will affect her future, and preserve her estate.

Thing is, by law, if a Ward (legally incapacitated individual) requests a new guardian, it's usually granted. Mom's emancipation from me took place December 16th. (Merry Christmas!) She can do so every 6 months. I get to sit back and watch the estate diminish before my eyes. If my Dad were able to comprehend, he'd have a cow!!!!! And he'd be angry! He would not allow my mother to do this, as he always handled everything. But since he can't, I stand in his place. Only I don't know all the tricks.

One ugly piece to this nightmare: This particular judge hates family guardians. He always rules against them. Downstate, where my parents are from, I was a hero. The judge praised my work, and gave me an "atta girl." She would never have allowed this... Up north, where I live and moved both parents to, I'm considered a problem to be rid of. Mom's doing all in her power (including lying) to make that happen. She's an abusive, vindictive, and deluded individual who has become my arch enemy. The more we did to help, try to please her and meet her needs, the nastier she got. I expect more ugly to follow, as she goes back down to see the house I've been cleaning out for the past 8 months. Mother will show her true colors when she sees it and flips out in front of her new guardian. Thing is, I have no standing, and no respect. What a crock!!!

I've been praying for a miracle, but think mom will just reap what she has sown. All our hard work and diligence to preserve their estate will have been for naught. I paid of thousands in just debt to collection agencies and creditors, and got Dad on Medicaid. Now someone else will be gathering where they have not worked or toiled. They are already talking about putting mom in a home...(on Medicaid, too). So what are they planning to do with the family heirlooms? (Nice system-NOT!).

What we need is legislation to protect the family from governmental takeover of estates, and using family Caregivers like this! I have no idea if my attorney is going to be able to help or not. We have an appointment tomorrow.

Thanks for your suggestions and contribution. I'm sure you would have advised me against getting guardianship in the first place. Now I am telling others that, also. Do not do it unless it's absolutely necessary! You won't like the results! They say I will remain as my Dad's guardian, but I've also heard they can take that away... (I guess if I stand in the way of someone's designs on my parent's estate, they can do whatever they want...) This is not a pretty picture. My sister already took some things, and it was against my will. But mom said...and plans to give her more... We grieve.