How to Deal with a Certified Financial Planner Regarding My Mother's Will

[dlleo]

My question involves estate proceedings in the state of: Florida
My mother has left all her financial affairs, including her will, in the hands of her CFP. Over the last year, her mental health has declined respective to short term memory, i.e. - in conversation she will repeatedly ask the same question, (which has been answered), or forgets that she has said something, or where things are, like a microwave in my sister's kitchen. Recently, the husband of her only living sibling died, she forgot it... called to notify me when her sister called her regarding services, however she had called me two days prior to notify me of my uncle's death.

Though my mother has been treated for various medical conditions and has regular examinations, my siblings and I have not been given authorization by her for the release of medical information. In addition, she is very suspicious of any interest in 'her money' or financial affairs by any sibling. (Her financial affairs were arranged by her husband before his death about 15 years ago). Before his death, she was never in charge of money matters, investments, etc. At this stage, we siblings know almost nothing about her investment portfolio or estate plans, except that she has been living very comfortably on interest income.

In Jan '11, I talked to her CFP with concern for her memory and capability to oversee her affairs. The CFP indicated he felt no concern for her abilities or affairs ('sees a lot of this with elderly clients'), but said he would call me once he'd met with her. Since then, he has met with her several times, most recently within the last month, to make some changes to her will. My siblings and I are quite concerned for her medical and financial well being, but have been kept out of the loop, mostly by my mother's design.

My question is, does a CFP have a fiduciary responsibility to contact or respond to the client's family relative to declining health concerns as related to 'capacity'? Can a CFP be granted limited or durable power of attorney, appointed an executor, or a conservator of my mother's estate? Are there conditions that present a conflict of interest, or unethical conduct in this regard which are cause for adjudication? Should a CFP be responsive to inquires from a client's children and is he obligated to seek family involvement to assist in financial/investment decision making in the event the client is incapable? We are concerned for his overriding permissions and control granted by our mother, with ultimately serve his best interests. Legal and ethical advice in these areas would be greatly appreciated.

[Mr. Knowitall]

Your mother is either mentally competent or she is not. If she is mentally competent she can instruct her financial planner to do what she wants, and she has every right to modify her will or estate plan. If she is not, her financial planner should not be "helping" her change her will.

Of course her financial planner, as a fiduciary, has fiduciary duties. Any time fiduciary duties exist a conflict of interest can arise. There's no reason a client cannot authorize a financial planner to assist her with planning her finances and carrying out her wishes; at times that could involve granting power of attorney.

As long as mom is mentally competent, it's her decision whether her financial planner or health care providers can talk to you. The provider cannot breach confidentiality with the client merely because she's elderly. If you want information, ask mom for the information.

If you believe your mother is no longer mentally competent to manage her own affairs, you may petition a court for the appointment of a conservator. If you believe she is no longer competent to manage her medical care and living arrangements, you may petition for the appointment of a guardian.

[dlleo]

Very astute,

If she is mentally competent she can instruct her financial planner to do what she wants, and she has every right to modify her will or estate plan. If she is not, her financial planner should not be "helping" her change her will.

Of course she has the "right", mentally competent or not. However, I don't think she knows that she is or is not mentally competent, she is not forthcoming with medical diagnoses (she was referred to a doc to evaluate her for memory issues, but she doesn't remember who), she only says she is having problems with her memory but doesn't want me or my siblings talking to her docs. I certainly don't think she is going to tell her CFP that she is incompetent, while he on the other hand, most likely knows that she isn't competent, but CAN be ignoring that to design her assets and the control of her assets to suit himself, fiduciary duties aside, and possibly being appointed by mom to other responsibilities with her estate, like executor, and PoA.

'Asking mom" is almost pointless - she forgets what she has been asked, told, or said, so what then is the basis for judging her competency: what she has said, or what she has forgotten? I assume the burden of proof would be on the Petitioner for Conservatorship in Court. Without permission from her to receive medical information, I have no access to expert opinions, indeed, I only know the names of a few of her docs. I also assume that the Court would petition this information, but my mother is going to be of NO help. I can only think she would be quite hostile.

My question is, does a CFP have a fiduciary responsibility to contact or respond to the client's family relative to declining health concerns as related to 'capacity'? Can a CFP be granted limited or durable power of attorney, appointed an executor, or a conservator of my mother's estate? Are there conditions that present a conflict of interest, or unethical conduct in this regard which are cause for adjudication? Should a CFP be responsive to inquires from a client's children and is he obligated to seek family involvement to assist in financial/investment decision making in the event the client is incapable? We are concerned for his overriding permissions and control granted by our mother, with ultimately serve his best interests. Legal and ethical advice in these areas would be greatly appreciated.

I don't want to beat around the bush with the CFP. I expect that he would firstly be respectful to his CFP/client responsibilities, however I also want to come from an informed place to act in a manner to preserve my mother's affairs, by asking pertinent, specific questions of him, rather than standby while the forces of unchallenged competency prevail.