Settling Sibling Rivalry

If you’re not currently involved in issues involving hatred, estrangements and petty jealousies among your siblings, you may find it hard to understand how a belt buckle could turn two loving brothers or sisters into squabbling enemies for years. But you should read about this problem anyway, in hopes of avoiding ever having it happen to you.

Actually, there are no problems in estate planning unless you’re trying to do something illegal. There are only solutions.

The solution as to whether it is prudent for one sibling to be named as the durable power of attorney for a sister or brother if one of them becomes mentally or physically incompetent is the issue we are exploring here. It is the same as asking whether a sibling should be named the “successor trustee” of his or her brother’s/sister’s revocable trust. The answer hopefully can be determined before the question of mental capacity of the trustor raises its ugly head and makes things more complicated, but sometimes it takes a crisis to get beyond the pettiness of relationships.

Are siblings the best person for that powerful position?

At first glance, if the older brother was 69 years old, unmarried with no adult children and had accumulated some wealth over his lifetime, most siblings would choose their 60-year-old younger brother to take over their financial affairs, especially if the younger brother had a proven reputation of business acumen. The ideal would be that because blood runs thicker than water, there would be no better person to trust and act in his brother’s best interest. At least that is the way it would be portrayed between Wally and Beaver Cleaver when they hit 69 and 60 years old.

But just as not every mom wore a string of pearls every day like June Cleaver, not every set of brothers or sisters were as close as Wally and the Beav. In fact, most siblings have as many things to fight about as they may have inside jokes they have laughed about over and over again as they grew up in the past 40 years.

The question in the twilight of the older brother’s years — when he begins an early onslaught of dementia and starts to forget more than he remembers, and his failure to remember makes him paranoid and distrustful of everyone — is, is it wise to put the younger brother between the older brother and his money? Wouldn’t it be wise to hire an attorney whose hands are codified by a code of ethics where upon breach of his duty he would lose his license to practice law and be civilly liable for damages? The attorney is, after all, trained to be “reasonably prudent” in all business dealings with the client’s money, which means “he must do whatever a reasonably prudent person would do under the same or similar circumstances.”

My response to this requirement is that if that is all it takes, then why can’t a reasonably prudent brother with perhaps more business experience than the attorney offer the same prerequisite — even more so because he cares deeply about being successful in bringing his brother’s last days into fruition as his brother had planned? The attorney, on the other hand, although he has a fiduciary relationship to his client, will necessarily keep his lawyer/client relationship at arm’s length. This is not only because it’s easier that way, but because it keeps the attorney from facing his own mortality, whereas the brother has no other choice.

Make no mistake: Once you bring Social Security, Medi-Cal and Medicare onto the scene, everything becomes complicated and far more personal than the hundreds of rules and regulations these agencies will reveal. It takes a lot of reading and talking to experts before you may understand the system — if ever — but there is no reason a reasonably intelligent sibling could not do a better job, if it was only because they had more at stake than money in the outcome.

But this is where there is strong resistance. If, at the time of crisis, two brothers were for some reason passionately estranged and had not talked for years, people who have not experienced the fulfillment of reconciliation between their siblings have difficulty believing it is genuine. They do not understand there is nothing more important than those people who love and support you in the end, and they do come back to do so for all the right reasons.

If you are alone and dying, suddenly houses, cars, money or anything else of material worth means nothing. If you are lucky enough (or perhaps unlucky in some cases) to be thinking straight when you believed you saw the pearly gates within sight about the time you believed or even wished that you were dying, can you imagine thinking of anything other than who you really loved? You will not be thinking about belt buckles. Forgiveness will be foremost on your mind, and that comes best served when it is not you having to ask for it.