Dallas, TX asked in Estate Planning, Family Law and Elder Law for Texas

Q: 1. How do I get visitation rights to see my 89 year old mother? One brother is preventing other family from seeing her.

My mother is 89 years old and has documented dementia since 2014. My father cared for her until his passing in Feb. 2023. One brother took approximately $300 - $400K out of bank accounts and opened a new bank account that has him and my mother both as signers. There is no way my mother would have done this without his cajoling her, and the attorney that did this for him could not have done anything to determine my mother's mental capacity. She is at about a 6th grade capacity at this point. He also changed the POA and has declared himself as her legal guardian. It is rare that me or the Executor of the original will (another brother) and I get to talk to her. If we say something on the phone call, which is monitored by the brother, he disconnects us. To top it all off, we are not allowed to see her and visit her unless he is monitoring it. We cannot have alone time with her or even take her out to eat. Help please! We want to know what we can do. Thank you.

1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: A person cannot simply declare themselves another person's legal guardian. It requires a determination of incompetency and court order.

A person cannot legally change a power of attorney signed by another person. The person making the power of attorney can do that by revoking a prior POA or signing a new one.

You have every legal right to see and speak to your mother subject only to parameters set by your mother.

This is likely not a legal matter but rather a matter of asserting your rights with your mother and ignoring your brother's efforts to interfere. I recommend that you show up unannounced at your mother's home as often as possible--ideally several times each week--to visit and speak with her face-to-face. You should extend your offer to take her out to eat directly to her in these visits and immediately follow through if she expresses an interest. You do not need your brother's permission.

But, if your brother is spending a lot of time with your mother and you & the brother who is named as her executor only visit her infrequently, your mother is naturally likely to take "his side" in any dispute.

If you believe your brother is physically intimidating her or financially abusing her, you can report his treatment of her to Adult Protective Services. That will likely strain relations with your brother and could lead to further difficulties in the future.

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