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  1. #1
    Nancy Rivers is offline Junior Member
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    Exclamation Breach of Fiduciary Duty re caregiver concerns

    What is the name of your state? Georgia

    My brother has POA, is trustee of my father's trust, and attorney in fact for my father as stated by the trust. Yes he is an attorney - contract disputes are his specialty. My father's caregiver has become nothing short of a malignancy in our family. She and my older sister have developed a personal relationship that seems to be based primarily on bashing me. The caregiver has lied to hospital staff about being my father's daughter (the ER staff was pretty upset about that), lied to neighbors about the same thing and additionally has claimed to be a registered nurse, has lied to my sister via e-mail about doctor visits (mostly about what doctor's have said about my father's diet), claimed expertise in all areas of caregiving yet has no degrees or credentialing in anything, and to keep things short, has lied about me to my siblings just short of defamation. I have talked to experts in the field of geriatric caregiving and been told that the caregiver's behavior towards my father is sexually inappropriate (I didn't even think of that one but she gives my father full body hugs, tells him she loves him, calls him "sweetie"), has turned my father in to her "sugar daddy" (she just gives him an amount to make out checks re her wages with no accounting or invoice - he has dementia and I was also told this is criminal), and has been right smack in the middle of most of the blow ups between my siblings and I because she eavesdropped on conversations I was having and lied to my sister about them or simply put words in my mouth that I did not say. My brother and sister however, are content with the quality of my father's care. I am not. I have contacted a geriatric care specialist that is very concerned about these issues and wants to meet with me and my siblings. However, they are resisting and do not see a need. My sister believes she knows everything there is to know about dementia. My brother does nothing as POA or trustee (the caregiver does all the bill paying and my brother does not even review her store receipts or request an accounting from her for her pay). He did help prepare my father's taxes but since he did not issue a 1099 to the caregiver, my father now owes back taxes and penalties re her social security taxes. We have had to get a third party lawyer involved to untangle the mess. The caregiver was originally paid through an agency but she convinced my brother and sister to pay her directly sometime last fall. No taxes have been paid on her since that point. And perhaps more stunningly, neither my brother nor sister knew how much the caregiver was being paid. She was just giving my father a figure, filling out the checks, and having him sign them. I asked my brother directly if he or his accountant wife would take over bill paying and payroll and he said no.

    Does this sound like a breach of fiduciary duty? If so, do I have standing to do anything about it? My brother is not interested in even the opinions of experts re this caregiver. Never mind my opinion. I'm talking about what experts have to say. My father's next door neighbor is nursing supervisor for all the county schools and my brother won't even talk to her and what she has observed.

    Any advice would be greatly appreciated and thank you for time reading this long post.

    Nancy
  2. #2
    tranquility is offline Senior Member
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    You can't make your family do anything here. The only legal recourse is to sue brother for breech of fiduciary duty and try to get him removed. Even then, you may have a standing problem as we're talking about a POA where the principal has not been declared incompetent.

    Get an estate attorney to advise you on the specifics. Since there is the possibility brother breached and that breech may have caused money damages, he may negotiate his way out of being the POA. But that is not enough as you would need someone to become conservator of dad to change things. But since the harm you fear seems focused on money, the court may not appoint you in such capacity. And, without support of your siblings, proving incompetence will be much harder.
  3. #3
    Nancy Rivers is offline Junior Member
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    My concerns are not primarily money although I do believe the caregiver has been taking advantage of her lack of supervision and spends much of the day reading or playing games on the computer. I believe she overspends and is somewhat of a compulsive shopper at my father's expense. My father can afford what he needs but does not like to waste money. I try to respect that but my brother could care less and has even stated he does not care. The caregiver defies my requests to limit treats and sweets for my dad and I am always finding cookies and chocolate and ice cream (my dad is mildly diabetic and has just recently recovered from serioius life threatening c-dif). My concern is having a caregiver in the home that is not supervised, that defies a family members instructions re a healthy diet, that has exploited, inflamed and created family dramas and done so much harm to family relations. My brother has a higher standard of care to look after my dad's caregiving and his money. But he is missing in action. He has an investment package that has been sitting on the corner of his desk since last November (his statement) that he has not looked at to invest the proceeds from a house sale for my father. That money is currently siting in a regular savings account doing nothing but earning minimal interest. I do not want to be conservator, trustee, or POA. I would prefer my brother step up to the plate and perform his fiduciary duties and supervise bill payment, investments, and hired help. If he is unwilling to do these basic things, he needs to resign.
  4. #4
    tranquility is offline Senior Member
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    My concern is having a caregiver in the home that is not supervised, that defies a family members instructions re a healthy diet, that has exploited, inflamed and created family dramas and done so much harm to family relations.
    You do not have the right, currently, to issue instructions. The persons who do have that right are your father and your brother. They do not find a problem with his care or with the issues related to family relations.

    My brother has a higher standard of care to look after my dad's caregiving and his money.
    You would need to state more. A power of attorney has the right to do things in the name of the principal. Does your brother have a durable power of attorney? Does he have actual responsibility for the care of father? If so, how can father sign checks which can be cashed? The higher standard of care in a normal POA has to do with the duties given the attorney-in-fact and how they are performed. Your original post is confusing on this as brother is not in breach regarding care if father has rights to decide. Even that is assuming there is a substandard level of care.

    My concerns are not primarily money
    You should count the references to financial aspects as related to personal care aspects and see what you are primarily writing about.

    I do not want to be conservator, trustee, or POA. I would prefer my brother step up to the plate and perform his fiduciary duties and supervise bill payment, investments, and hired help. If he is unwilling to do these basic things, he needs to resign.
    As I said previously,
    You can't make your family do anything here.
    If you want to change things,
    The only legal recourse is to sue brother for breech of fiduciary duty and try to get him removed.
    However, if dad is competent (in a legal sense),
    you may have a standing problem
  5. #5
    MadCowJudge is offline Member
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    I have some experience with the type of so-called caregiver you are talking about. SHE BELONGS IN JAIL**************....That is simply my opinion, nothing legal about it.

    The caregiver I speak of is currently IN JAIL for theft, forgery and elder abuse. Long story. Seems it is always a woman preying on a man.

    You have problems Nancy. Go get the b.....ch
  6. #6
    BlondiePB is offline Senior Member
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    Nancy, due to the fact that your dad requires a caretaker, your father is a "vulnerable adult". Call Adult Protective Services in the county where dad is domicled. Even self-neglect by elders is elder abuse.
  7. #7
    tranquility is offline Senior Member
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    Remember that son with POA, the adult and one of the daughters thinks everything is fine. While protective services may step in, there's going to have to be proof at some point.
  8. #8
    BlondiePB is offline Senior Member
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    Quote Originally Posted by tranquility View Post
    Remember that son with POA, the adult and one of the daughters thinks everything is fine. While protective services may step in, there's going to have to be proof at some point.
    I understand perfectly about the POA et. al thinking all's fine. That's not what the investigator may find though. Have you ever witnessed an APS investigator's initial calling on the suspected abused elder? It's quite interesting, to say the least.
  9. #9
    Dandy Don is offline Senior Member
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    What he is doing may also be considered abuse of power of attorney if he is not keeping receipts for the monies to prove he is spending it correctly and not keeping it for himself. A family law attorney or social worker can tell you if your state has laws against abuse of POA.
  10. #10
    Nancy Rivers is offline Junior Member
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    New Development

    My POA brother executed a medical POA for the caregiver while my father was again just recently hospitalized. One of my father's doctors spoke to me about it. She said never in her career had she seen or heard of a family doing such a thing period but especially when there are three intelligent adult children within easy reach. The doctor recommended rescinding it immediately because the way it is worded appears the caregiver has ultimate authority on all medical procedures. The geriatric care consultant I had met with has never heard of this either. I insisted to my brother before doing this that he obtain expert advice which he refused to do.
  11. #11
    Dandy Don is offline Senior Member
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    Has your father written a will and do the children know where it is?

    How did caregiver get control of financial assets (bank accounts)? Does caregiver also have POA? Find out your legal rights so you can have her actions audited before she steals you and your brother's inheritance. What an idiot you have for a brother--is it possible she is also paying him proceeds from what she is stealing from the father's accounts? Gee whiz!!
  12. #12
    tranquility is offline Senior Member
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    I still see only one complaining over everything. The person who does not have any power. If you want to do anything useful and are convinced you are correct, I already gave you the answer, twice:

    You can't make your family do anything here. The only legal recourse is to sue brother for breech of fiduciary duty and try to get him removed. Even then, you may have a standing problem as we're talking about a POA where the principal has not been declared incompetent.
    If brother is no longer the POA, then substitute "caregiver" for brother.
  13. #13
    Nancy Rivers is offline Junior Member
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    Medical POA

    My brother is an attorney and very busy as attorneys are. He is not however, unavailable by phone. He lives 10 minutes from my dad! He passes the hospital on his way home! I live in town as well and my sister is here indefinitely. The POA he has was executed in 1987 when he graduated law school. It has never been updated. It is not a "springing poa" or anything like that. Just a very general POA. Under the medical section it does state that my father has to be declared incompetent by a doctor re medical decisions which he has not. The geriatric care consultant that is helping me (my brother and sister refused to meet with her) has sent out an e-mail to her expert care consultant e-mail list about this because she is not even sure that this is legal. It seems my brother did this "willy nilly" even though I insisted he obtain expert advice before doing so. This was triggered because while my dad was in the hospital, I took one of the hospital administrators aside and told her that I was the daughter, not the caregiver, because she was acting like a family member and excluding me from conversations with medical staff. What a stunning and stupid move by my brother. What the doctor told me was that the family can give consent to discuss medical information. But the medical POA givers the caregiver power. And she thinks that is dangerous.
  14. #14
    tranquility is offline Senior Member
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    I find it fascinating you continue to make the choices you are making. Are they making you feel better? Are they changing the situation? What is your goal? Maybe that can help people advise.
  15. #15
    Nancy Rivers is offline Junior Member
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    I am not sure what you mean by the choices I have made but please do not elaborate. I have simply stated the facts of a situation of which the legality is in question. This is a new situation that has just come up in the past few weeks. I do not know what to do hence the reason I am trying to obtain some helpful legal information in order to formulate a goal or plan. The outcome or answer may be to do nothing because there is nothing I can do. Or something else. I do not know. The geriatric care consultant that is helping and coaching me believes this situation is very serious, that there is no clear chain of command or authority anymore because of this medical POA assigned to the caregiver, has concerns herself about the legality of this, and additionally, the situation is unique and could be somewhat precedent setting. In 45 years of experience she has never seen the likes of this. Neither has my father's pulmonolgist who is also very concerned about it. So why you would find my choices fascinating when I need feedback and comments on the facts of a serious situation, is momentarily curious but most unhelpful. I read through some of your previous posts and though some of your posts are helpful, some are off the mark, accusatory towards me, with an amazing tone of impatience considering no one is forcing you to read this or make you respond. I posted on this forum because it is promoted as a legal advice forum. Unfortunately, you seem to be using it as a forum to make childish hurtful jabs at people with problems looking for help. It may make you feel better for whatever reasons, however, I am not interested in further responses from you.

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