My mother maintains control over my mentally handicapped brother who lives in a care home. If my mother were to pass away, would control of ...

Question

My mother maintains control over my mentally handicapped brother who lives in a care home. If my mother were to pass away, would control of my brother go to the next of kin or would some sort of document need to be done to allow myself or another sibling make decisions for him.

Answer

By what legal right does she exercise control?

John

Answer

I agree with Attorney Davidson. You do not indicate how your mother maintains control over your brother.

Is your brother a minor (under age 18) or an adult? Has your mother been formally appointed as his legal guardian if he is over 18?

If the answer is yes, then upon her death, guardianship does not transfer to the next of kin. A new guardian would have to be appointed as a successor.

If your mother is not the guardian, then is she only a payee for Social Security purposes? In that case, if your mother died then your brother would have to assign a new payee. But being a payee does not allow the agent to make decisions for someone.

I think that if you are concerned then you probably ought to have a discussion with your mother to see what has been done and make some plans for succession planning. You also should talk to an elder care lawyer as they are most familiar with these types of situations.

I don't know what assets your mother has but she may also want to set up a special needs trust to care for your brother. In such case, she needs to see an estate planning lawyer for that.