Legal Question in Legal Ethics in Massachusetts
Ethics of family member using their attorney to draw up POA for parent
Husband's mother is 78 and in beginning stages of dementia. No will. Two homes. Cape Cod home in deceased husband's name. Sister lives near mother; we don't (we live in Maryland). Sister and my husband discussed importance of mother signing power of attorney. Husband wanted to serve with sister jointly to provide a balance in making financial decisions. Sister went ahead and used her attorney (family friend) who is mysteriously now the mother's attorney to draw up durable POA paperwork. Is this ethical? I would think this would be a conflict of interest sitation. Further, sister is trying to convince mother to sell one home so they can build a $250,000 additiopn on their home to care for her. When asked what they would do when Mom needs more care (and their MS and heart disease becomes worse), they had no answer. When suggested that consultation with a Medicaid expert be done, then had no answer. Sister now has control of 1.5 million dollar estate. We are going up to MA to talk to the mother to see if she signed the paper of her own free will and was sound of mind. If so, then fine. If not, any advice? And should we file a complaint re the unethical behavior of the attorney...if that is the case? Thanks.
1 Answer from Attorneys
Re: Ethics of family member using their attorney to draw up POA for parent
Nothing appears to be unethical. In order for the POA to have effect it must be effected during lucidity. Based on your question, the POA may satisfy this requirement.
The ability of the attorney and the services provided are often not clear where elder law matters are concerned and this depends on many factors.
Medicaid planning is complex and state dependent. It may be beneficial to have attorneys from the respective states evaluate the issues and advise you.
Planning for advanced age is important. It appears that this is being done but you question the adequacy of decisions being made. Clearly the options being pursued are not exclusive of other options.
The power of attorney may be needed. Given that you think that certain actions have been taken that are capable of further review, you should make this be known.
Best suggestion is to contact an attorney and have matters reviewed for presentation should you feel that another course of action should be taken.
Due to the complexity of these matters a review would require that all information be available.
Contact an attorney for assistance. I am available at (410) 750-2567.
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