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If You Help, Don’t Do It Like This

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Don't help

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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.