Navigating through family legal disputes can be challenging, especially when it involves the well-being of a loved one. I have been living with my mother in her home for 20 years, and she named me a preneed guardian in her estate documents in the event of her mental incapacity. She also made me the executor and agent in her advance directives, including her Durable Power of Attorney. In 2020 when Covid-19 infected our nation, my mother became ill, which led to her rapid deterioration and loss of cognitive abilities. Dementia overtook her, and she could no longer take care of herself.
After asking my brother for financial help, he immediately hired a lawyer to take control of my mother and her estate. He said he intended to have me evicted from the home. The will says once deceased, my brother and I would equally inherit her home. I do not have the financial wealth to fight my brother in court. Q: Regardless, why would I even need to fight my brother for guardianship of my mother when her declaration of preneed guardian designates me as her guardian?
For nearly 20 years, I have helped dress and care for my mother, pay her monthly bills from my earnings, and drive her everywhere she needed to go, including attending our local church together every Sunday for two decades. The idea that my brother is trying to take her from me and evict me from the only home I know seems illegal and cruel.
A: Being the worshipper you are, remember from scripture, Timothy 5:8 says, “But if anyone does not provide for his relatives, and especially for members of his household, he has denied the faith and is worse than an unbeliever.” You are not an unbeliever because you have cared for and devoted yourself to your mother for 20 years. Your brother may think money holds the Power of the Sword, but the law will more likely align with you.
The Preneed Declaration does not make you the guardian; it grants you the right to present to the court that your mother selected you should she need a guardian. Remember, she chose you as her guardian, not your brother. You may file an objection to his guardianship petition with the court and request the court grant you guardianship based upon your mother’s wishes that you serve as her guardian and your devotion by having lived with and cared for her for more than 20 years. The court may side with you.
Furthermore, since you have a durable power of attorney over your mother’s assets, you have the Power of the Purse, allowing you reasonable access to her accounts and real estate. Her assets could potentially pay for guardianship without assistance from your brother. The Power of the Purse is often mightier than the Power of the Sword.
Remember, your mother believed in you, not your brother, to care for her in her most difficult hours. Seek the advice of an estate planning attorney and take charge of your mother’s well-being and future today.