My Mother's legal guardian is a crook. What can I do as her son?
July 27, 2014 9:47 PM   Subscribe

My Mother's legal guardian is a crook. What can I do as her son?

My mother, due to a lot of stress, and other legal complications she was having at the time, had a friend take over her affairs as legal guardian. This was approximately 5 years ago.

Today, she is not getting her social security checks, and will be evicted because she does not have the funds to stay in her apartment. This "friend" is keeping the checks for himself.

I have no idea what I can do at this point beyond talk to an attorney, but perhaps fellow mefites can shed some light on 1) putting her in a position to handle her own affairs, or 2) forcing her current guardian to hand over guardianship to me.
posted by hobodeluxe to Law & Government (9 answers total) 1 user marked this as a favorite
I'm so sorry for your situation, the only advice I have is to talk to an "elder law" attorney, not a general one.
Plus if you can spare it, pay so she can stay in her place until you can sort this mess out. But that's not legal advice or I'm sure if the best advice, just trying to keep her off the streets.
posted by TheAdamist at 10:00 PM on July 27, 2014 [2 favorites]

First of all, let Social Security know that she's not getting her checks, and they are likely being cashed by someone else. If this person is your mother's legal guardian, they may not be able to do anything about it right away, but they can launch an investigation or refer you to a different branch for investigation into whether the money is being used in the best interest of your mother.

Call the main number at 1-800-772-1213 or find the number for your (or her) local branch.
posted by WasabiFlux at 10:38 PM on July 27, 2014 [1 favorite]

The process varies from state to state, but the court who assigned the guardian initially remains the superior guardian and will have a process to review the arrangements. Your best bet would be to obtain a probate attorney in the jurisdiction where your mother lives. If you cannot afford one, you can contact the clerk of court and ask them what resources are available to help. The court could appoint an attorney or a guardian ad litem and also could probably point you towards a state social services office that might have resources. If the guardian is indeed using your mother's social security checks for personal gain, the court will take a dim view indeed of that and will take corrective action. If you post the city or state your mother resides in, perhaps someone here will be able to point you towards appropriate resources.
posted by Lame_username at 10:38 PM on July 27, 2014 [2 favorites]

If your mother is over the age of 65, this is elder abuse. Google elder abuse in her city or state to find the government agency responsible and call to make a report. (Calling Adult Protective Services is like Child Protective Services (CPS). Give them as much information as you can and they will investigate and they can coordinate with the police and other services. They can also advise you on what other options you can take.

Also, there are several ways someone else can take responsibility for your mother - power of attorney, court appointed guardian, social security payor. Depending on how this woman got her power, will determine what it will take to undo it. Also it will make difference whether or not your mother is competent to take back responsibility for her own affairs or not. Similarly, you don't say if your mother agrees that her friend is a crook. Obviously this is easier if your mother agrees with you about the best solution to her situation going forward.
posted by metahawk at 11:02 PM on July 27, 2014 [4 favorites]

This is financial exploitation of a vulnerable person, and it may be a prosecutable crime in your mother's jurisdiction.

The EMERGENCY WILL ROBINSON part here is your mother getting kicked out. It's important to know what stage of this she's at -- did she receive a five-day notice? Has there been a court case opened? Has she had her hearing? Are the sheriff's deputies going to show up and physically take her out? If this is still before any sort of court date or filing your mom's chances improve dramatically. But you may want an attorney with landlord-tenant law experience to sort this out -- she may need a written agreement for any sort of catch-up plan, for example, and he'll be able to make sure she can stay in her home for now. (In the long run, if her money was stolen, she may be entitled to restitution, but that could be a ways down the road.)

Next you want the elder law attorney. [Look one up.] They are likely experienced in these kinds of situations and will have good advice for proceeding with any of the multiple avenues that may seem necessary. They will also be invaluable in setting up any sort of future arrangement, e.g. with a better Representative Payee (could be you, could be a local non-profit or a bank, depending), and with any other financial arrangements you'll need if your mother's mental health and/or independence are failing.

Finally you'll have to look up the elder care agency in your mom's area. It may be part of a city or county social services (human services) department. They also will have experience with this, as it's distressingly common, human frailty being what it is. ("I'll pay her back next month with the money I'm not sure I'll have." Most embezzlers start out with a rationalization.) These guys will have links to all the relevant agencies, from Social Security to whatever, and in extreme cases can refer situations to the district attorney for prosecution. The caveat is that their investigation may take a looooooong time, more time than your mom has.

As far as Social Security, though, as long as your mother remains communicative and alert, she can change her Representative Payee at any time. It is its own thing, not governed by e.g. Power of Attorney, and outside of a declaration of incompetency by a court, you both can just go to the local office and do it. Now. And next month's check will go where she wants it to. This will at least return the flow of money from the feds -- what they already sent and didn't reach her is another matter. But people tend to cough up what they have when they start getting official notices from Washington.

Good luck! When my other worked for elder care here she did a couple of abuse investigations. It's heartbreaking because it's always someone close to the victim who was trusted, probably for many, many years.
posted by dhartung at 12:11 AM on July 28, 2014 [4 favorites]

I was also unclear about the eviction.

Unless she's been evicted in court and the sheriff is coming (in every jurisdiction I can think of in the US) you're mom's not homeless unless a lot of paperwork and legal steps against her were performed.

Lots of good advice above about the financial issues - but I'm strongly wondering if this isn't a straight out criminal matter. Call your state's ATTORNEY GENERAL'S OFFICE and ask one of the nice and knowledgable folks who answers the phone there if this is a criminal case.

This is bullshit and you are powerful considering your position. Don't be afraid or ashamed to act.

Best to you.
posted by jbenben at 12:34 AM on July 28, 2014 [3 favorites]

I agree with jbenben - you should file a police report.

Yes, also call an elder care lawyer. However, if someone is taking a person's social security check, and stealing funds from an elderly person - that is a crime.

Being a legal guardian does not shield you from this crime. In fact, being a legal guardian imposes on your extra levels of care, fiduciary duties.

You need to FIGHT for your mother. And, in a good fight, you use every advantage and every angle you have. That includes pursuing criminal charges.
posted by Flood at 4:29 AM on July 28, 2014 [6 favorites]

Thanks for the responses thus far everyone. She is a resident of New Jersey.
posted by hobodeluxe at 4:32 AM on July 28, 2014

Every state has an agency on aging, and they will be an excellent resource. NJ Office of Area Agency on Aging Administration What a rotten situation; your Mom is lucky to have you assisting her.
posted by theora55 at 9:55 AM on July 28, 2014

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