Archive for Saturday, December 24, 2005

Farming funds divide siblings

December 24, 2005

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Q: I am the youngest of three children. We range in age from 60 to 44. I have lived next door to my parents in a house we built on their property since I graduated from high school. My husband helped my father in his small farming operation for 20-plus years, and I have been the one they relied on to look after their needs as they grew older.

My brothers and sisters have little interest in the farm, which is on 40 acres, as well as the home where we were all born. They all moved away from our rural community years ago and live in big cities. They visit once or twice each year and call our parents irregularly.

Because I am closest and most familiar with my folks' finances and medical problems, they appointed me to be their power of attorney years ago. I am also the personal representative of their wills. They did this on their own with their long-time lawyer many years ago without me being present or trying to influence them.

My father died three years ago, and left my mother a life interest in the property so that, when she died, my husband and I would be able to continue the farm - as that is how we support ourselves. His will says that my husband should continue to farm the land and set aside enough for my mother to be comfortable until she dies, at which time the farm and all equipment would be ours.

He and my mother kept three money market accounts, with nearly equal balances, with their names and one of the children's names on each. After my father died, these accounts were put in mom's name with one of us children on each. Mom began to slip mentally quite a bit early last year, and now has full-blown dementia. I kept her at home as long as I could, but have had to put her in an assisted-living facility that costs $3,200 per month. After using her $800 in Social Security, my husband and I apply some of the farm income to her care costs and take the difference in equal shares from each of the three money market accounts.

My sister and brother began accusing me of taking advantage of our parents last year, but have now hired a lawyer who wrote to tell me that if I handed over their share of the accounts now, they would not sue my husband and me and would release their claims to the farm. Otherwise, he says, there will be a big court fight and everything will be up for grabs. Needless to say, I have been shocked and hurt by their behavior.

We don't have the money to hire a lawyer, and if I give up these accounts, all of mom's care costs will come from only one account that will run out. Is there anything I can do, short of getting a lawyer and going to court against them?

A: Most presumptuously, your siblings appear to want to make sure that since you and your husband will get the land (which they can't stop), "their share" of the inheritance should be paid to them now and you should assume the cost of your mother's care.

First, it's unlikely that your mother's power of attorney authorizes you to take her money and gift it away to your siblings as an "advance" against their inheritance because they are afraid it will be used to take care of her.

Second, the money in those accounts during your mother's life is hers, not your siblings', and we believe you would breach your fiduciary duty to your mother to do anything other than what you are doing. In fact, as your mother's fiduciary, you can choose what accounts to use for her care.

Third, since your mother is the life tenant of the farm, she is entitled to all of the income, less a reasonable sum for the expenses required to make the land productive. So long as you and your husband continue the farming operation in the same manner as did your father, you should be OK.

Fourth, there comes a time in everyone's life when, after their back has been pushed against the wall, they need to come out swinging. This appears to be one of them. When faced with what appears to be nothing short of extortion, you are duty-bound to protect your mother's funds and make sure she is taken care of. You must hire an attorney to let your siblings know that two against one may be a fair fight when you are in the right.

Taking the NextStep: While giving chronically ill seniors and disabled Americans a Christmas gift of more reduced benefits, Congress has chosen again to increase their pay, and their retirement package remains better than most of us get from our employers. To find out more, go to www.nextsteps.net and click the useful links. You may be shocked by what you see.

- Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.

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