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Jewish World Review July 30, 2003 / 1 Menachem-Av, 5763

Jan L. Warner & Jan Collins

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Consumer Reports

Can we stop our brother from swindling us? | Q: Nearly 40 years ago, my sister and I moved away from home. Our younger brother continued to live next door to our parents' farm. When our mother died two years ago, Dad gave each of us a copy of his will. He told us that his land, equipment and cash would be equally divided among the three of us after he died. He appointed our brother as his power of attorney because he lived so close. At the time, neither my sister nor I had a problem with this arrangement.

Just weeks before Dad died earlier this year, our brother had Dad deed all of the property to him and put his name on Dad's CDs. Only some farm equipment remained in the estate to be divided. Needless to say, we were shocked. We tried to talk to our brother, but he referred us to his lawyer.

Another attorney told us there is nothing we can do, since Dad was competent when he signed the deeds and bankcards. We're heartbroken that our brother would do this, but also want our fair share. Should we get another opinion?

A: Yes. While the law in this area may vary from state to state, the outcome of cases like these generally depends on whether there was a "confidential relationship" between the individual who transferred the property (your father) and the person who received the property (your brother).

Your father -- in appointing your brother to serve as his attorney -- created a fiduciary (holding something in trust) and confidential relationship between them. Because the attorney is considered to be the "dominant" party in self-serving transactions, your brother has a heavy burden to legally prove the fairness of the transfers. Depending on the facts and the language of the power of attorney -- which your Dad clearly signed when he had full capacity -- it may be almost impossible for your brother to prove the transactions were fair.

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The confidential relationship between your father and brother would appear to have tainted the transactions between them that benefited your brother. Unfortunately, this could have happened whether you lived next door or 1,000 miles away.

We suggest that you contact an attorney who handles these types of cases regularly. Write out a thorough history of the events for him or her; try to determine approximately how much money and property has been moved; find out what it will cost to bring the action; and then make a decision about whether or not you will move forward.

Based on the way it is drafted, the language of a durable power of attorney agreement may authorize self-serving transactions through which the attorney can benefit from transactions with the principal. A way to prevent one child from taking economic advantage over a parent and siblings is to require that gifts or transfers made to children are made simultaneously and in equal amounts.


Statistically, more women than men will face retirement years without a mate and with significantly less financial security than men. With lower retirement and Social Security income and longer life expectancies, more women will be at or below the poverty line than men or married couples. One-fourth of unmarried women will count Social Security as their only income source. While increased participation in the labor force will assist women in the future, today's women must recognize the realities of their financial situations and plan ahead now.

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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.


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Is there protection against Medicaid costs?
Long-term care insurance comes up short
HIPAA -- too much privacy?; nursing home doc could care less
Private pay nursing home residents pay more
Separated families should use care managers
What Makes Up a Caregiving Team?
Who is the client, parents or children?:

© 2003, Jan Warner