Don't help

If You Help, Don’t Do It Like This

A recent case out of Maryland illustrates that helping an elderly parent can lead to criminal penalties and (gulp) jail time. Don’t help, at least not like Sharon Shivers did.

As the Maryland Court of Appeals tells the story, Sharon and her dad, John, had a “somewhat strained” relationship for many years. John found out they lived a few miles apart and reached out. They reconnected, John got to know his grandson, and Sharon and her son visited twice a month or so.

John Asks for Help

John then decided to add Sharon to his bank account because “he had been experiencing medical issues, and he believed he could trust her . . . to pay his bills and his mortgage in the event his medical issues incapacitated him or required hospitalization.”

Sharon thought John was exhibiting “concerning behaviors.” For instance, he asked her to buy him a sledgehammer so he could destroy his furniture and buy smaller furniture that would fit in his assisted living facility. His diet consisted mostly of StoveTop dressing and milk and refused to allow her to set up Meals on Wheels delivery. And overall, he “wasn’t grasping what was going on.” He also refused to invest his money.

She Decides He Needs More Help

Sharon decided to help. She put $35,000 in her own account and purchased a $50,000 CD in John’s name. Sharon says he knew what she was doing — they’d talked about it. Part of that discussion was about long-term care planning and asset limits for public assistance.

John then tried to withdraw $11,000 for a dental bill and, he says, learned for the first time that the money was missing. John “was furious” and asked for the money back. Sharon said she would think about it, reasoning (probably correctly) that she could manage the money better than he could.

Someone reported this to the authorities, Sharon was charged and convicted (after a two-day jury trial) of one count of theft of property valued at between $25,000 and $100,000. She was sentenced to six months incarceration and restitution of $6,000 for attorneys fees.

In the appeal, Sharon’s main argument was that the evidence was insufficient to support the conviction.  She lost.

But she was only trying to help!

Helping Poorly Is Not Uncommon

We’ve seen people try to help loved ones by doing (or contemplating) similar things. Even if you love someone, you need to help ways that don’t amount to stealing. Sharon would have faced similar problems if she and her dad were in Arizona.

For one thing, being “on an account” doesn’t mean you can do whatever you want with the money in the account. Arizona law says that, for a joint account, it belongs to the parties “in proportion to the net contribution of each to the sums on deposit.” There is one exception: if there is “clear and convincing evidence of a different intent.”

For Sharon and John, it seems very clear that she didn’t contribute funds, and the purpose was clear: to help John with paying bills. Sharon had no right to move the $35,000 into her own account.

Dangers of Joint Accounts

As elder law attorneys, we often counsel people NOT to add their helpers as co-owners. The more appropriate move is to name them agent under power of attorney and add them to the accounts as the “POA.” The benefit of this arrangement is that the agent is legally bound to use the money as the depositor intends or directs. And there’s less of a chance that the depositor inadvertently rearranges his or her estate plan. (But that’s a topic for another day.)

In Sharon’s case, the problem with the POA arrangement is that John would have remained the decider, even if his decisions were unwise.

Instead of Helping So Much

What could Sharon have done? For starters, she should have given the money back when he asked for it. She then should have been the sweetest, most devoted daughter imaginable. If she could regain any trust, she could then schedule appointments with a financial planner, attorney, or other trusted professional to provide John with guidance. Outside professional voices can persuade people to make better choices. Sometimes.

Another option? She could have filed for conservatorship to formally take control of John’s financial affairs.

If they were in Arizona, she would have had to prove that he was unable to manage his affairs effectively for a specific reason. Those listed in the statute are mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.

Likely a Losing Option

Sharon probably would not have prevailed. It appears from the ruling that John, at trial, was able to explain the entire situation. He convinced the jury, at least. He likely then could have done the same with a judge. His decisions may have been unconventional and unwise. But he was still able to make them.

What else could she have done? Limited her help only to what he wanted from her. As long as he can make his own choices, he gets to decide whether he needs a helper and how much they help.

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