Descendant Rights

[cbeigle54]

Jurisdiction

Virginia

My older brother has secured, through the court, guardian and executorship of my mothers' Power of attorney AND her will.Now, do other family members (children) have legal rights pertaining to the will? I ask this because I have been told he is exercising extraordinary control over everything pertaining to her. Also, IS there any reason why some executors exercise such control over the estate ? Thank you for any insight.

 

[adjusterjack]

Is your mother alive or dead?

No joke. It's a serious question and has a lot to do with how answers are presented.

Guardianship and POA imply living.

Will and executorship imply dead.

We need to be clear about what we are discussing.

 

[cbeigle54]

Is your mother alive or dead?

No joke. It's a serious question and has a lot to do with how answers are presented.

Guardianship and POA imply living.

Will and executorship imply dead.

We need to be clear about what we are discussing.

 

[cbeigle54]

• My mother, presently is alive, and thank you for helping me not get confused. So yes, I am referring to guardianship and control over affairs. Now, do other family members (children) have legal rights pertaining to the estate? I ask this because I have been told he is exercising extraordinary control over everything pertaining to her. Also, IS there any reason why some guardians exercise such control over the estate ? Thank you for any insight.

 

[army judge]

do other family members (children) have legal rights pertaining to the estate?

Maybe, assuming there is an estate and no will exists.

If mother were to die intestate, the intestacy laws of VA determine who gets what.
As long as mother is alive, the guardianship your brother possesses, effectively makes him her mother's guardian, as in parent.

As guardian he decides what medical care she recieves, how her funbds are spent, investments managed, and every other aspect of her life.

As guardian, he can prohibit YOU from calling or visiting mother.

I have seen this situation many times.
I find it baffling why people worry more about "STUFF" than the health and well being of the infirm person, or elderly relative.

 

[army judge]

IS there any reason why some guardians exercise such control over the estate ?

Yes, because the guardian rules supreme over the life of the person who is protected/named in the court order.

The guardian is responsible ONLY to the court who issued the order, and must periodically make a report to the court, and provide a full accounting of the person's assets.

 

[adjusterjack]

I am referring to guardianship and control over affairs.

OK. That raises a few more questions. I don't want to make assumptions that lead to erroneous information.

So let's define a few terms.

Power of Attorney - Generally means that your mother would have signed a paper giving your brother the authority to act in her behalf in a variety of ways, i.e. financially and/or medically.

Guardianship - Generally done by court order when the protected person is no longer competent, either physically or mentally, to handle her own affairs.

Was the guardianship of your mother awarded to your brother as a result of a court procedure because she was no longer able to handle her own affairs? It's also possible that she consented to the guardianship and it went through court to make it official so that he had greater authority than just POA.

If so, then he does have full control over her affairs but he also has a statutory and fiduciary duty to act in her best interests and not in his own.

Here's a handbook about guardianship in Virginia published by the Virginia Guardianship Association. Might help you understand it better.

http://www.vda.virginia.gov/pdfdocs/Guardbook.pdf

It would help to know if your brother petitioned the court to award him involuntary guardianship because of a mental or physical condition or whether it was something your mother agreed to.

If you want to monitor the guardianship I suggest you start by going to the courthouse and buying yourself a complete copy of the guardianship case file.

Now, do other family members (children) have legal rights pertaining to the estate?

As long as your mother is alive the answer to that is no, because her assets belong to her, to do with as she wishes, or if she is incapacitated, for your brother to administer in her behalf.

Upon her death, the guardianship and the POA terminate and the will takes over. Any "rights" to her estate that you and your siblings might have will be those that are specified in her will. As executor your brother would have to comply with the terms of the will and probate the estate accordingly.

As executor he would also have statutory and fiduciary duties with regard to probating the estate.

Here's a brief guide to probate in Virginia.

http://www.courts.state.va.us/courts/circuit/resources/probate_in_virginia.pdf

 

[cbeigle54]

Maybe, assuming there is an estate and no will exists.

If mother were to die intestate, the intestacy laws of VA determine who gets what.
As long as mother is alive, the guardianship your brother possesses, effectively makes him her mother's guardian, as in parent.

As guardian he decides what medical care she recieves, how her funbds are spent, investments managed, and every other aspect of her life.

As guardian, he can prohibit YOU from calling or visiting mother.

I have seen this situation many times.
I find it baffling why people worry more about "STUFF" than the health and well being of the infirm person, or elderly relative.

 

[cbeigle54]

1. This is what I find puzzling, that such control....maybe supposedly over "stuff", is absolutely exhibited in my mothers situation. I got a letter from my sister yesterday and my brother has controlled her access to our mothers' home....strange? O well, thank you and everyone else for your information. Things are a little clearer now. Have the best day.

 

[army judge]

1. This is what I find puzzling, that such control....maybe supposedly over "stuff", is absolutely exhibited in my mothers situation. I got a letter from my sister yesterday and my brother has controlled her access to our mothers' home....strange? O well, thank you and everyone else for your information. Things are a little clearer now. Have the best day.

Not strange at all.
He's the guardian.
He wields great power over his ward, his mother.
Any of the siblings could have applied to become the guardian, however, he beat all of you to the punch.
The early bird, the clever bird, the hungry bird eventually steals all the worms.
I saw it happen to my late, beloved mother and father.
It's a sad sight to behold.

 

[cbeigle54]

Not strange at all.
He's the guardian.
He wields great power over his ward, his mother.
Any of the siblings could have applied to become the guardian, however, he beat all of you to the punch.
The early bird, the clever bird, the hungry bird eventually steals all the worms.
I saw it happen to my late, beloved mother and father.
It's a sad sight to behold.

 

[cbeigle54]

What exactly is being stolen, in most cases?

 

[adjusterjack]

What exactly is being stolen, in most cases?

Huh?

Who says anything is being stolen?

 

[cbeigle54]

Huh?

Who says anything is being stolen?

"The early bird, the clever bird, the hungry bird eventually steals all the worms", per Army Judge, 3 posts up.

 

[adjusterjack]

"The early bird, the clever bird, the hungry bird eventually steals all the worms", per Army Judge, 3 posts up.

Oh, that. Sometimes an unscrupulous heir with immediate access will take the valuables and pocket the proceeds while heirs who live far away sit on their thumbs.

 

[cbeigle54]

Oh, that. Sometimes an unscrupulous heir with immediate access will take the valuables and pocket the proceeds while heirs who live far away sit on their thumbs.

 

[cbeigle54]

So they are, in FACT, breaking the law in the guise of guardianship... and if they DO steal from the estate...if the stolen items are noted in the will, as being given to other heirs, how does the law view that, and how is the executor accountable?

 

[adjusterjack]

The duties, obligations, remedies, and penalties are addressed for both executors and guardians/conservators in VA Title 64.2 Wills, Trusts, and Fiduciaries:

Code of Virginia - Title 64.2. Wills, Trusts, and Fiduciaries

If the guardian/conservator (or later the executor) is violating his statutory or fiduciary obligations you can petition the court for a remedy.

By the way, when you click on Reply and you see the text quoted in the space, start typing your response in the same space without clicking on Post Reply. Then click on Post Reply when you are finished and both the comment and your response will appear in the same space.

And if you want to address specific comments one at a time just highlight the comment and you'll see the word Reply appear over the highlighted comment. Clicking on that will bring the quoted comment into the new space. When you have addressed that comment don't click on Post Reply just highlight the next comment that you want to address, Reply will appear over the comment, click on it and the quoted comment will move into the same space as the previous comment. When you have finished addressing all of the desired comments, then click Post Reply and it will all be in one space.

You can see how that works in Post #7 where I addressed two of your comments in one space.

 

[cbeigle54]

I want to thank Adjusterjack, and Army Judge for your responses. As negative as I'm sure many situations get, honestly....I choose to believe that.....with all the responsibility involved in being guardian, there is a "common sense" factor in making sure no property of the estate is disturbed. I know it's a stretch to believe that this could be a reason for such extraordinary control, but I am also aware of his legal responsibilities and the consequences of violating "said" responsibilities. All of the feedback helped me come to this conclusion. Thank you all.

 

[army judge]

I want to thank Adjusterjack, and Army Judge for your responses. As negative as I'm sure many situations get, honestly....I choose to believe that.....with all the responsibility involved in being guardian, there is a "common sense" factor in making sure no property of the estate is disturbed. I know it's a stretch to believe that this could be a reason for such extraordinary control, but I am also aware of his legal responsibilities and the consequences of violating "said" responsibilities. All of the feedback helped me come to this conclusion. Thank you all.

I laughed at those buzzards.
Fact is, in a bizarre way, I found it humorous.
As I gazed upon them, I saw a troop of monkeys scurrying about, excited as they found new treasures.

The vile bastards cleaned out bank accounts, sold property, had a 500 acre pine forest stripped of all the trees by a lumber outfit, sold oil rights, etc...

I watched in awe.

My dad had a scrapbook of his WW II contributions, that ended with Patton's 3rd Army and the storming of Germany. Dad and I would sit for hours, even after I grew up regaling me with his efforts in WW II. Lucky for me Dad gave me his scrapbook a year before he died with explicit instructions as to its care and safekeeping.

Beware the buzzards.
Buzzards devour everything, mate.
I know.
I've seen it several times.