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Can an Attorney for Property and Personal Care Take Gifts?

A senior lawyer discusses the gifts given to a daughter by her mother while the daughter is the attorney for property and personal care. It raises issues that flow from such gifts including the presumption of undue influence and whether taking such gifts breaches the fiduciary duty of the attorney for property and personal care.


So Mom is having a meeting with her son and she says, “Son, I love you and your sister exactly the same. When I die, each of you are going to get half of what I have If I have two apples, you get one and your sister gets one Exactly the same.”

So then mom dies, call it 20 years later. And sure enough, they take a look at the will and it’s exactly as she told her son it would be. Everything is divided exactly in half. But then they take a look at what’s in the estate, ZERO. And the son is beside himself.

So he goes to his sister and says: “Where the hell is all the money?”

And the sister says, “Well, as you know, when Dad died I moved into the house to take care of Mom. I took her to all her appointments. I drove her to the hairdresser. I shoveled the snow. I raked the leaves. And Mom appreciated everything I did. Part of the money went to buying me a condo. Part of the money went to buying me a car, because all my girlfriends had cars. Part of the money went to pay for an American education for my 7 kids. And there’s nothing left.  And it’s because ‘Mom loved me best’ that I gave up my life to take care of Mom for the last 10 years What did you do? You sat in your office, in Chicago, and did nothing.”

So the brother goes crazy and he says, “You’re absolutely nuts! You didn’t move into Mom’s place to take care of her. She took care of you. You lost your job. You lost your husband. No one would live with you. Your kids didn’t want to stay with you. And you took over as Mom’s attorney for property. How could you have taken presents from Mom, when all your should have been doing is taking care of Mom.”

It’s not unusual. It’s as if brother and sister were watching two different videos. That’s why these types of cases often end up in court.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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