The Great Wealth Transfer will see nearly $124 trillion in assets transferred through 2048 — and according to a Northwestern Mutual report 57% say their inheritance is “critical” or “highly critical” to their long-term financial security. But what happens if your loved one begins spending your inheritance and hiding their finances from you?
Let’s say, that Nicole’s mother, Elmira, is 85 years old. Elmira lives alone, although Nicole helps her out a lot. Elmira recently began hiding her finances from Nicole, and Nicole just discovered her mother has been giving money to the neighbors.
Now Nicole is wondering what, if anything, she can do about her mother’s excessive — and newfound — generosity. Unfortunately, lawyers say the answer may not be as straightforward as you’d think.
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Acknowledging her mother’s autonomy
The first key thing Nicole must realize is that ultimately her power is likely limited when it comes to her mother’s funds.
“It’s important to remember that age alone is not a reason to take away a person’s right to control, or give away, her money,” Kerri Koen, an estate planning attorney and co-founder of Modern Legacy Law Group, told Moneywise.
Morgan Mitchell, an attorney at Coker, Robb & Cannon, Family Lawyers, agrees, telling Moneywise, “it’s hard to take away someone’s ability to make their own decisions, even if they are objectively bad ones.”
In fact, Mitchell explained that even if Nicole had power of attorney and was empowered to act on her mother’s behalf, this wouldn’t necessarily override Elmira’s choices, as Elmira could revoke the power of attorney at any time as long as she’s of sound mind.
While Nicole may not like Elmira’s decisions, they remain her choice unless there’s a very good reason to take away her autonomy. As Sarah Ocampo, founder and CEO of Ocampo Wiseman Law, told Moneywise, “If your mother is mentally competent and understands what she is doing, she generally has the right to spend or give away her money to whomever she chooses during her lifetime.”
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Checking on her mother’s wellbeing
While Elmira can give away her funds voluntarily, Nicole can and should make sure no unlawful or unethical behavior is prompting her to act.
“Large gifts that are uncharacteristic for your mother could be a sign of coercion or financial exploitation,” warned Koen, while Lisa McCurdy, founder and managing partner of The Wealth Counselor, a boutique estate and asset protection law firm, told Moneywise that the secrecy was the “warning sign” as it could signal “a scam or someone exerting undue influence over her.”
Financial exploitation causes an estimated $28.3 billion in losses each year, so Nicole has a valid reason to be concerned about her mother giving away money. To find out, Tiffany A. O’Connell, CEO and founding partner of O’Connell Law, told Moneywise that Nicole’s first step should be a conversation with Elmira.
“I would encourage the adult child, if possible, to approach the parent with concern rather than accusation: ‘I’m worried because this seems different from how you have handled money in the past. Can you help me understand what is going on?’” O’Connell suggested.
If Nicole still has concerns and suspects exploitation after that conversation, McCurdy suggests reporting the issue to adult protective services to investigate.
Guardianship is possible if you can prove incapacity
Even if Elmira isn’t being exploited, Nicole may still have another reason to act.
“If you have legitimate concerns that your mother no longer has the mental capacity to manage her finances, you may need to petition the court for a guardianship so someone can be appointed to protect and manage her assets,” Ocampo said.
This process can be a challenge, though, and Mitchell said a medical professional would need to “determine that she lacks the ability to handle her physical or financial concerns.” Both Mitchell and McCurdy also explained that guardianship is rare and usually a last resort.
“It is public, expensive, and removes a parent’s legal rights,” McCurdy said. “Courts expect families to try less restrictive options first.”
Still, Nicole may be able to get court authority to help her mother protect her assets if there is sufficient evidence that Elmira isn’t of sound mind. And if Elmira risks losing the chance to leave the legacy she deserves, Nicole can and should step in.
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Christy Bieber has 15 years of experience as a personal finance and legal writer. She has written for many publications including Forbes, Kilplinger, CNN, WSJ, Credit Karma, Insurify and more.
