Where to Put Granny ... & Who Gets to Decide?

Do you have an elderly parent (or two)? Do you know their end-of-life wishes? Are they written down? Do your parents have enough money to live the way they want to until they die? Is there any reason they should not live out their final days according to their stated wishes? Is there anyone you can think of who might want to thwart their plan? Anyone, like maybe your sister or brother?

These are not rhetorical questions. They are very real. And if you have elderly (75+) parents, listen up. You might want to listen up, yourself, lest you find your own self fighting your own kids (and others) for your right to live independently on the money you've spent a lifetime earning.

Many of you have followed my saga of the sister-in-law (SIL) who tried to steal the family inheritance. I've written about it in prose and poetry. I've written about the fiduciary who took over the "management" (and in her case, I use the term loosely) of our family's trust when we ousted SIL from the position of executor.

Many of you facing your own inheritance heists have commented repeatedly on my hubs over the months. I thank you for your interest and support.

If my story is familiar to you, I thank you in advance for tuning in to the latest chapter. If you are new to this particular family/fiduciary drama, I hope you will learn something valuable.

If I can save even one family, or one sibling, from the ordeal Hubby and I have endured, it will be worth it to me.

In September 2009 Hubby and his mother fought to remove SIL from the position of executor of our family trust. I would say we took her to court, but the case was mediated. Mediation means that instead of a judge or jury determining the outcome, the lawyers and their respective parties come to their own settlement agreement -- with the expert assistance of a mediator (another lawyer, of course). Supposedly it's less expensive than trial. If you go for this option, make sure the settlement agreement is legally enforceable -- and legally enforced.

Our settlement agreement assigned a paid, professional fiduciary to serve as power of attorney and manage the trust's assets. Hubby and his mom were overjoyed. For about five minutes.They were so relieved to get the trust out of SIL's hands and end the self-dealing (a fancy term for stealing money from her mother for her own personal use). They had no reason (yet) to suspect they'd been totally conned by the insider lawyers into handing my MIL's money and welfare over to their good-old-girl, essentially tossing all of us under the bus.

Alas, that is exactly what happened.

The fiduciary' talked a good game. She promised to look after Della/Granny, give her an allowance and visit her regularly. Within the first weeks she proved completely unresponsive. Hubby continually asked her, "Show me the money." She refused. Repeatedly.

Note that beneficiaries of a trust are legally entitled, with reasonable notice, to an accounting from the trustee (in this case, the fiduciary). My husband and his mother might as well have been talking to a wall. The fiduciary repeatedly failed to provide documentation that

a) all trust assets had been turned over in a timely manner (or at all) from the former trustee (SIL), or

b) that the assets were being properly invested and expenses prudently monitored

It seemed the louder Hubby and his mother screamed for accountability, the more the fiduciary stonewalled. Was there a problem here, we wondered? We speculated that yes, there was. But having no proof, we couldn't state for sure that the trust had been breached (breach of trust means that the terms of the trust document have been violated, that money is missing).

For nine months Hubby called and emailed the fiduciary. "What are you people doing over there? My mother wants to know if her money is safe! Have you moved all the accounts over? How much money does she have? Can she afford her lifestyle?"

He sounded like a slightly hysterical broken record. His mother was equally hysterical, not having a clue where she stood financially. Under the circumstances, wouldn't you be hysterical?

I'm frankly surprised the woman was able to flat-out ignore their petitions for so long. I mean, she's a licensed professional. This is her client she's ignoring. And ignoring. And ignoring.

Yet she continued to ignore his/their requests for an accounting of the trust. She ignored the supposed intervention of my mother-in-law's attorney. She ignored the supposed intervention of my husband's attorney. My husband even attempted to get the mediating attorney involved, but (surprise, surprise) got no answer or help there, either. The party line was that things were getting better, but we just couldn't see it. (Uh, if we can't see it, how do we know it's getting better?)

In April 2010 my husband had had enough. He demanded to fire the fiduciary. Except no one would lift a finger to help him. No one even bothered to explain his rights as either medical POA or trust beneficiary. Note that these rights are not explicitly spelled out in the Settlement Agreement and the SA is the only "contract" -- such as it is -- we have in place with the fiduciary. The one thing he did know, and lives in fear of, is the clause that disinherits him (or SIL) if they make any move against the trust. Wouldn't that just take the cake?

In the same month, my MIL fell down and was hospitalized. When she came home she required 24/7 care.

My husband, being the medical power of attorney for his mother, selected a caregiving firm. He instructed the fiduciary to pay the caregiving firm. At no time was he given a budget. Believe me, he had asked till he was blue in the face. So in the absence of any financial information whatsoever, he used his best judgment and picked a provider. Could his mother afford it? He was never told one way or the other.

A month or so went by. Granny still required 24/7 care. Hubby intuited that the caregiving firm was charging an exorbitant amount. He sought a more economical replacement. The fiduciary never said boo about this new caregiver. Was the new arrangement truly affordable? Could the estate sustain this level of care indefinitely? (Because by then it was clear Granny would not be living "independently" ever again.)

Not a word was said. Hubby slowly let go of his daily campaign to find his mother's money. He had more important things on his mind: his mother's declining mental and physical capacity, plus supervising the caregiver.

An entire year wet by. Della/Granny continued living at home with 24-hour live-in care. No mention was made -- ever -- by the fiduciary, that the trust was now bleeding red ink.

We still didn't know whether or when all the trust assets had been marshaled (marshaling the assets is fiduciary code for figuring out how much money is really there). We had no idea whether SIL had drained the accounts. We had a reasonable idea of how much income Della made (having done our own little accounting during SIL's trust executor reign of terror). We knew basically what her monthy expenses were for rent, electricity, Jitterbug phone, hair appointments, etc. We knew what the caregiver was charging.

So even though we didn't "know know" we "knew" that Granny's monthly expenses were greater -- by a fair margin -- than her income. But, hey! We had a professional fiduciary on the job, so if she wasn't worried about it (and she appeared not to be), why should we be?

Again, we were neck deep in handling Della's medical life. Where she had started this adventure in 2009 with mild mental impairment, she was now declining swiftly into dementia, not to mention crippling arthritis and depression.

She was also rapidly approaching her 90th birthday. We figured if we all made it to September 9, 2011 we'd done a good job, and whatever happened after that was God's will.

As stated above, there was a life-and-finances-changing event in April 2010. Della/Granny went from living on her own to requiring full-time care.

Yet a full year went by with no mention of this change. The woman in charge of my MIL's finances (and thus her life), said nothing.

Not a word.

Until July 2011.

Imagine our shock when, instead of a call or even a letter from the fiduciary, Hubby received a formal letter from an attorney. The letter informed him that

a) the family trust is out of money, and

b) his mother/Della/Granny must immediately be put in a care facility more in line with her diminished financial status

I'm writing this in January 2012. As of this writing, my MIL is still living in her home. She still is cared for 24/7 by her dutiful, wonderful caregiver.

We have been engaged in hostile, heated litigation with the fiduciary and her attorney for seven months now. This attorney has shown herself to be every bit as devious and despicable as her client. There's no doubt SIL (remember her?) is still behind the scenes, pulling the strings. She (SIL) will not stop until she gets her way. At this point, it's not about the money. If there's any crumb left (which, btw, we still don't know, as we still have yet to see an accounting), the lawyers will get the spoils.

That's part of the insanity here.We're not fighting over money. There is no money. Everyone knows that. It's not like this was ever a large or complex estate. It started out as a medium-sized pot. Just enough, we thought, for Della/Granny to live out her widowhood in reasonable comfort. In her own home. According to her stated wishes.

In her case, these were spelled out in the family trust document. Her intentions vis a vis her final living arrangements are not only clear, but emphatic. Residence in a retirement facility/rehab hospital/old folks' home -- call it what you will, it's a four-letter word and is to be avoided at any cost. Those are the terms stated in B/W in the trust. Those (among others) are the terms that the fiduciary is being paid to fulfill. Her job is to manage Della's money so as to keep her at home.Until her death. It's that simple.

But the fiduciary apparently has a different agenda. In 2+ years she never suggested a single cost-cutting measure. We went from full-throttle spending to "she's broke!" in the space of a year. And now she's declaring, via a high-priced attorney, that there's only one solution to the problem she created. She's even taking us to court to get her way on this.

I don't think it's just me. This whole situation is insane. We have professionals who are being paid to watch the family's money and make sure it lasts Della's lifetime. They failed to do their job.. Now their default is, "Put her in a home!"

In fact, "Put her in a home!" is something of a mantra of everyone in this scenario, except for Hubby, Della, and our attorney.

1. We have a daughter (SIL) whose goal has always been to tuck Mommy safely out of the way in the cheapest possible venue. You know, the old, out of sight, out of mind routine. With Mommy stuck in a retirement home, SIL could roam the world on her parents' money (or so her plan went) with impugnity. But, having been removed from the trust in 2009, and having seen her mother exactly 3x in the past 2 years, why should she have any say in what happens to Della/Granny now?

2.Oh, and the lawyers. Those bastions of compassion, fairness and human kindness! They're multiplying again. We have the lying lawyer hired by the negligent fiduciary leading the rallying cry. Now there's another lawyer on the case, as well. The court, in its infinite wisdom, has determined that Della needs something called a guardian ad litem. She's new to the situation, but is diligently exploring living options for Della based on her "presumed" financial status. I say presumed because I can't imagine the fiduciary has been any more forthcoming with her about what really happened with the trust than she's been with us.

3. Oh, and you'll love this (I know I did). Just last night we discovered that Della's granddaughter has been asked to weigh in on the matter. Yes, she's been requested (by the evil fiduciary's attorney) to write a statement based on her weekly (give or take) visits with her grandmother. Why the hell not? She brings her kid by to visit for an hour on Fridays. Surely she has as much right as the rest of the committee to opine on where and how Granny should live, don't you think?

Who cares that the woman is protected by a written trust? Who cares that she is 90 years old and in failing health and probably has months, at the outside, left on this planet. What's really important? I mean, if we let Della/Granny die with some semblance of dignity, in familiar surroundings, then all these experts are wrong. If the fiduciary is forced to show a true accounting of the assets in the trust and what she did (or did not) do with them, then she loses. And Hubby wins. And we can't have that, can we?

But as I said above, this situation is insane.The definition of insanity is doing the same thing over and over expecting a different outcome.

Failed by the Professionals, Failed by the System
Well, we looked to lawyers to save Della's money in 2009 and they failed us. We looked to the fiduciary to protect Della's money and she failed us. I honestly don't know what's going to happen with this case. But I see the other side marshaling their forces. They are determined to win at any cost. They will not rest until they get Della/Granny put in a home.

Well, hubbers, here's your chance to get in on the action. Surely your opinion is as valuable as any of theirs.

Accordingly, I'm marshaling my own forces. I encourage everyone to vote on what you think should be done with Della/Granny. You have at least as much exposure to her, as much knowledge of what her day-to-day life is really like, as any of them.

I will take the results of my poll to the judge when we go back to court in February. Seriously.There's just a handful of "them" and who knows how many (hopefully two handfuls, at least) of us.

Thank you. Mighty Mom

After 2.5 years of asking the simple question "Where's the money? What can Granny afford?" we finally got our answer.

Granny is officially broke. Penniless. The fiduciary effectively bankrupted the trust. She can not afford to stay where she is. What little money she had left is going to the lawyers. In fact, in true Grinchian fashion, the fiduciary's lawyer tried to take her last $1.

She is 90.5 years old.

The move will kill her.

There is no justice to be had here.

It's been two months since we "settled" our lawsuit against the fiduciary. In exchange for a truly obscene amount of money she called off her attempt to get the courts to ORDER my mother-in-law into a care facilty. The lawsuit depleted my mother-in-law's estate by roughly 2 year's worth of living expenses. We won the "right" to keep my mother-in-law at home, per her own very explicitly stated (in a legal document called a TRUST) wishes.

Two months later -- almost exactly two months to the day of the court's approval of the settlement -- my mother-in-law is dead. She died this afternoon. She died in her own bed in her own home. It's almost like once she knew she was safe, that "they" (the fiduciary and her daughter) were not going to be able to move her into a home, she said, "Ok, I don't have to fight anymore. I got my wish. I'm checking out."

It was a helluva fight getting to this point. We fought it literally to the death. Was it worth it? Absolutely.

And we got to participate in a beautiful and holy experience with her. She died on her own terms. I believe everyone deserves that right.