A friend's elderly mother often forgets why she's living in a nursing home and wonders where her late husband is. Meanwhile, her oldest daughter, who has unlimited power of attorney, asked me to witness her mother's signature on a real estate transfer of vacation property. She explained that she and her sister want sole ownership of the cottage so that when their mother dies, which is expected to happen soon, they can avoid a cash settlement with an out-of-state brother on this item of the estate.
Knowing that the mother isn't capable of making this decision for herself, I refused. But should the brother be told of his sister's plan? Should the court?
--In a Quandary Over Friendship
Dear In a Quandary,
What's quite remarkable is not only that your friend wishes to act dishonestly but also that she wanted you to help her do so. I presume she has worked out in her mind her rationalization for trying to deprive her brother of a part--perhaps a significant part--of their mother's estate. The most likely rationalization is that this daughter, who lives near her mother, feels that she has spent far more time attending to her elderly parent than he has, and that she's therefore entitled to a larger share of her estate.
Certainly, when some children live far away, the burden of caring for an aging parent often falls disproportionately on those who live close by. Nonetheless, if the facts are precisely as you have stated them, this woman's act is odious. Many people might think that the sole victim of her act is her brother, but there' another victim: her mother. The court gave this sister power of attorney to act in the mother's best interest and to carry out the mother's desires when she was no longer able to do so on her own. But this woman has decided to act in her own best interest, apparently against her mother's intentions.
This elderly, confused woman was once healthy and focused. Apparently, when she was well, she intended to divide her estate equally among her children. In general, that's the most moral thing for a parent to do, so that the children feel that the parent loved them equally.
Presumably, if the mother could understand what was happening, she would be heartbroken as well as outraged to know that one or two of her daughters were angling to dispossess their brother, her son, of his share of a significant asset. (Even if the brother has been a derelict son, it would have been up to the mother to make her will reflect that.)
So if I have such strong personal instincts in this manner, why am I suggesting that you first consult a lawyer? Because it can be dangerous to act in an ethically pure manner in an overly litigious society. And a dear friend of mine, a lawyer whom I consulted about your letter, told me that while it's true that a fiduciary (that is, the sister) should never act in a manner inconsistent with the wishes and desires of the granter of the power, he also told me to warn you that if you convey to the brother (or to the court) that this woman was trying to act in a dishonest manner, she will deny the charge and may well sue you for slander.
A final thought: Perhaps the best known of the Ten Commandments is the fifth: "Honor your father and mother." If the facts as you have conveyed them are accurate, then how sad that this woman's final act toward her dying mother is so profoundly dishonorable.
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Joseph Telushkin, a rabbi and Beliefnet columnist, is the author of 10 books, including "The Book of Jewish Values," just out from Bell Tower/Crown.