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Francisco Sirvent: Welcome, everybody. If you are here today, you probably spent your life trying to build a life you love to live. And it takes a lot of energy, focus, and discipline to do that. Today isn’t about building that life for yourself. It’s not about building that nest egg. It’s not about the discipline you have to have to just work and know that you need to save for the future to take care of yourself and your loved ones. Today is a little bit different. It’s about thinking about protecting somebody else’s foundation, and we’re focusing on your parents.
So, we’re going to talk about a scenario that, honestly, is quietly devastating a lot of families here in Arizona. You know, Chandler, Gilbert, Scottsdale, Tempe, Phoenix, Mesa—it happens all over Arizona.
00:15:31
Francisco Sirvent: Our focus is in the East Valley, and we come across this more often than I ever thought before I started this practice area. You know, just imagine your dad’s 82, and your mom passed away a few years ago. Dad’s obviously lonely. You know, they were married for decades, but they were able to build up a little nest egg to make sure they were taken care of in retirement. Maybe he’s got a house, maybe he’s got his retirement accounts, some money invested—maybe he’s got a million bucks, two million bucks—but he’s alone. He’s lonely, and he’s trying to manage everything and take care of things.
Maybe he’s starting to get some help. Maybe you’re starting to step in and help a little bit. But then suddenly, a new person steps into his life: a neighbor, maybe somebody who came in to start doing some regular cleaning, or maybe an actual caregiver that’s there to really help with something that he needs.
00:16:35
Francisco Sirvent: Or, you know, I’ve had cases where it’s somebody they met online, and within months, she’s helping with more things than you maybe knew about: helping him go to the bank, helping him pay his bills, helping him open the mail. And then what happens? Well, starting to whisper things like, “Your kids are only waiting for their inheritance. They just want you for your money.”
You know, if you’re not there in those day-to-day conversations, you’re sitting on the sideline thinking, “My parents did their estate plan. I’m the power of attorney. I’m the successor trustee. I have control of the situation.” That’s what we’re going to talk about today.
Before we jump in, I do have to give the legal notices, right? As a lawyer, nothing we talk about today is specific legal advice for your situation. If you need specific legal, financial, or tax advice, please sit down and talk with a qualified professional. Everything we’re talking about today is general information of an educational nature. Okay, very good.
00:17:56
What We Will Cover Today
Francisco Sirvent: I’m going to talk today about how the typical estate planning documents, even though they’re valid, recent, and have been updated, don’t protect against these sneaky situations of losing money to a stranger who’s come to act like somebody who’s helping.
So over the next 25, 30, 35 minutes, we’ll look under the hood of Arizona law on this stuff—about trusts, about banks, about real estate. And I hope to give you a couple of nuggets that you can walk away with and say, “Holy moly, I didn’t realize there was still some risk out there with that.”
I’m going to show you exactly how to stop this if it looks like there’s a takeover happening. If you’ve had a parent pass away recently and it’s already happened, we’re going to talk about what to do to recover those assets. But then, most importantly, I want to share a couple of techniques you can consider using for your family to just prevent this from ever happening. So, my first goal is that you walk away with a couple of things you didn’t know before you spent your time with us today.
00:19:23
Francisco Sirvent: I’ve been doing these webinars since the beginning of my practice almost 20 years ago, along with public speaking, writing articles, writing blogs, and doing videos. If you’ve seen our YouTube channel, there’s just tons of videos on there. I mean, you could basically watch and study all those videos and become a paralegal at my office. We just try to share this information and get it out there; that’s why I do this. I want you to walk away with at least one or two nuggets so you can protect your family and protect your loved ones.
Second, this is a really good way for us to get out in the public, get people to know us, and let them hear how we do things, what we do, and how I interact. I’m not a lawyer in a three-piece suit—all serious and stuffy. That’s just not me. If you’re looking for help, you get a little idea of how we interact, providing an easy, low-pressure way to see how we do things.
00:20:23
Francisco Sirvent: As part of that, if you find during this webinar that you need to do something that we talk about, I’ll invite you to schedule a free phone call to just learn about what we do, how we do it, and if it’s a fit for your situation.
The Power of Attorney Myth
Here’s the first big thing: there’s a big myth that a power of attorney solves everything. A lot of adult children sit down with me and say, “I’m the POA, so I can protect my dad, right? I can prevent stuff from happening.”
You have to take a step back and learn what a power of attorney actually does. What it actually does is create an agency relationship. It means that, for example, your dad has designated you as his agent to do all the things: to pay bills, to work with the financial adviser, to decide when to pull money out so you can pay bills, to manage investments, and—if it’s time to sell the house or sell the car—to do all the things that he otherwise could have done on his own behalf over his money, his finances, his bills, his real estate, or anything like that.
00:21:49
Francisco Sirvent: That’s what an agent is. What an agent is not is someone who can stop the principal—who can stop the dad—from doing something. And that’s where there’s this big chasm. There’s this big gap between what you can do and what you can’t stop your dad from doing. There’s actually a big gap there, and that’s where this comes up.
So, if your dad walks into the bank and says to the bank, “I want to wire $100,000 to whoever,” the bank has to follow his instructions. If he walks in and says, “I want to open a new bank account, put my friend on as a joint owner of the bank account, and transfer a chunk of money into my new bank account,” the bank will do that. It’s his money. The bank has no legal authority to stop him.
In fact, this is exactly what happened in a case we were called in on. An elderly guy’s dad was still living on his own, and he was doing well.
00:23:21
Real-World Example: The $800,000 Caregiver Loss
Francisco Sirvent: I mean, he was elderly—no doubt he was elderly—so the family hired a licensed caregiver because they were all out of state. They hired a licensed caregiver to come in and just check on dad a couple of hours a day: make sure there was food, make sure the house was in order, and make sure he was getting along okay. Things were going fine. You know, they would check in with the caregiver, they would check in with dad, and things were going fine. They had the ability to come down and visit anytime they wanted. The caregiver would occasionally drive him to a doctor’s appointment, and things were going fine.
Then all of a sudden, the son logs into dad’s bank account and sees an outgoing transfer for over $800,000. What the heck is happening? He calls dad: no answer. He calls the caregiver: no answer. What’s happening? He’s able to get on a flight and come down a couple of days later, but by then it was too late.
00:24:34
Francisco Sirvent: The caregiver had convinced dad—we don’t know exactly how—to open a joint account with her at a different bank, go back to his original bank, take out a cashier’s check for the full $800,000, walk into the new bank, and deposit it into the joint account. And you can guess what happened: she disappeared, and the money’s gone.
The power of attorney that the family held wouldn’t stop dad from doing that. That’s the big gap between the two: you don’t have the authority to stop them from doing something.
The Hidden Dangers of Joint Accounts
Here’s the risk with joint accounts: Arizona law actually allows this. Look what happens when your dad walks into the bank. I mean, this kind of predator rarely asks for a check written to their own name, right? They’re not going to say, “Write me a check for $800,000.” They’re going to say, “Let’s open a joint account so it can be easier. I can help pay your bills, I can pay for groceries, and I can just do things without having to drag you into it every single day.”
00:25:44
Francisco Sirvent: And the dad’s like, “Oh, this sounds so nice.” It’s a person they’ve come to trust, a person who has been helpful, and in any kind of slightly diminished state of mind, it seems like a good thing.
This statute in Arizona says that joint bank accounts have an automatic right of survivorship designation. Lifetime access, of course: the caregiver has access to all the money while everybody’s alive because they’re a joint owner. Either joint owner on a joint account is legally allowed to withdraw any amount out of that bank account. Then at death, the automatic survivor is the sole owner—100% of the money belongs to the survivor.
The moment dad put her name on the account, she had full legal authority to drain it.
00:26:57
Francisco Sirvent: She drained every dollar while he was alive, and when he passes away, that money does not go according to his will or his trust. It doesn’t even go through probate. That’s where this is a big hole—a big gap in a lot of the circumstances we see happen.
One of my very first cases was similar to this, but it was a family member. The mom lived here and had a niece who lived in town. She was the only family member who lived in town, as her daughters lived out of state. As mom was getting older, the family talked, and since the niece was single, she said, “Why don’t I just move in with mom? I can help around the house and make things easy for everybody.” It was great, and it actually worked for a few years. Mom loved it, the daughters loved it, and the niece was doing great and actually helping.
Except for when mom got really sick in the last couple of months of her life. By then, mom had put the niece on as a joint account holder on all of her accounts. And what did she do?
00:28:04
Francisco Sirvent: She saw mom go to the hospital, her health declining rapidly, and she just started transferring money out in big chunks. By the time mom passed, she had withdrawn over $600,000.
When mom died, the daughters and everybody arranged the funeral. After everything settled, the daughters finally asked the niece, “Okay, did mom have a will? Can you send it to us? We want to get that process started.” She sent the will, which we actually found out was completely fraudulent because it designated the niece as executor and left her the majority of the estate. The money was gone. By the time they came to us and we filed and fought, the niece poof—disappeared. The money’s gone. Joint accounts are a huge risk.
00:29:03
Beneficiary Deeds and Real Estate Risks
Francisco Sirvent: The other big risk is how easy it is to put a beneficiary deed on a house. Mom and dad spent their whole lives paying off their mortgage. Nowadays, most homes are worth $500,000, $600,000, or $700,000. I mean, try to find a nice home in Gilbert or Scottsdale—it’s going to be half a million dollars or more. They finally got it paid off, there’s no mortgage, and it’s just a place where mom as a widow, or dad as a widower, can live well.
Then the person comes in to start helping. The whole thing is that they are always helpful at first. They’re willing to invest months and months—maybe even years—before they start working their way in.
Arizona has a beneficiary deed statute that is very simple: you say, “When I die, I want my house to go to so-and-so.” It doesn’t require anybody’s consent. It doesn’t require anybody’s knowledge. It doesn’t have to go through probate.
00:30:20
Francisco Sirvent: It just has to be signed, notarized, and recorded before dad dies. There’s no verification that dad had the mental capacity to understand what he was signing. The notary is not going to do that.
If dad presents well, if he’s not obviously incapacitated, or if he’s just in those early stages of dementia or Alzheimer’s where he can still hold a basic conversation, a notary is basically just going to say, “Okay, give me your ID. That looks like you. Okay, sign here and sign my notary journal.” Stamp, sealed—there’s your document. There’s no verification by a notary that this individual has capacity at all. Finding a form for one is as easy as going online, right? Super easy.
The beneficiary deed then completely overrides the will. So if a predator gets dad to sign and record a beneficiary deed on his house, guess who it goes to? The will is completely powerless.
00:31:40
Why Standard Trusts Still Leave Gaps
Francisco Sirvent: A lot of people set up trusts nowadays, and I’m a huge advocate of trusts. I’m a huge advocate because they get your property into the trust, which avoids probate and keeps your affairs private within your family. There’s not a big public proceeding in court where everything is disclosed—all your wishes and all your money—taking one to two years to go through and costing tens of thousands of dollars.
So, you might be thinking, “My dad’s got a trust. It’s great. It’s going to avoid probate, I’m the successor trustee, and this is all organized. It’s all right, isn’t it?”
But imagine your dad. How easy is it to amend a trust? In Arizona, it’s very easy. You take a new document, say “I want to change this to that,” and your dad signs it. Sometimes it doesn’t even have to be notarized; it’s not required by law that it be notarized.
00:32:47
Francisco Sirvent: Any predator can sit down with your dad and say, “Gosh, I’ve been sacrificing here. I’ve been taking care of you, and I’ve only been paid this much. Wouldn’t it be really amazing if you could just leave me something in your trust? Your kids just don’t care. They’re not here taking care of you day-to-day like I am.”
Imagine being in that position in life where you really are dependent on somebody on a day-to-day basis. How scary would it be for them to say something like, “I can’t keep working here if I don’t know I have a future”? That is going to cause them to just sign something. You know, they’re going to say, “We can’t tell your kids because they’re going to be upset, but isn’t this just the fair thing to do?” Telling you, these things happen.
It is so easy to amend a trust. Or, if the house is in the trust, you just get dad to sign a deed taking it out of the trust.
00:34:03
Francisco Sirvent: Poof—it’s out, and then put onto a beneficiary deed or transferred straight to them. Who knows?
These are very standard tools: beneficiary deeds, powers of attorney, and trusts that we use in my office. We use them, okay? But they don’t plug this final hole of somebody actively exploiting a vulnerable adult.
Protecting Your Parents: The Trust Protector Solution
So, what do you do? One of the biggest tools that we use with our clients is not just a standard revocable living trust. Nope, that’s not good enough. What you need to have is something that can basically protect dad against himself—you have to have a way to keep dad from being able to do this to himself. We’ll talk about the springing irrevocable shield, but think about this:
00:35:12
Francisco Sirvent: A trust works like this: you put all your stuff in it when you set it up, and you are your own trustee. Dad created his trust, so he’s his own trustee. If mom and dad did a joint trust, they’re co-trustees. When one passes, the other is sole trustee and keeps carrying on. It’s revocable, meaning it can be amended at any time. We talked about that a minute ago, and that’s usually a big positive. We want people to be able to change their minds if they want to tweak who the beneficiaries are.
If they need to change who the trustees are, that’s fine. For example: “One son lived here, so we put him as our trustee, but he moved away and another child moved closer, so we want to switch to him.” Perfectly legitimate. Or: “We really want to add something for the grandkids now,” or “We changed what church we go to, and now we want to change the gift to go to the new church.”
00:36:05
Francisco Sirvent: All these things are perfectly valid reasons why we want the trust to be able to be changed while they’re alive and well, right? What’s scary, as we’re talking about today, is that anybody can come in and say, “Hey, you should make this change.”
So, what do you do? You create the trust with a very special clause in there. One way that you can protect dad from himself—which is the worst way and not what I recommend—requires you to file a lawsuit against dad if you find out something bad is happening. We’ll talk about that in a minute.
The best way is to create a trust that has something in it called a trust protector. What’s that? A trust protector is an empty seat until it’s needed. That’s the first and most important thing, okay?
00:37:18
Francisco Sirvent: So, your dad’s living life. He’s his own trustee, paying his bills, and carrying on. Maybe you’re the successor trustee, but you’re not in the job yet—that’s your dad’s job right now, and you come next.
What triggers you to step into that role almost always comes down to one of two things:
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Your dad voluntarily says, “You know what? I’m getting old, I’m getting senile, and I better not be in charge of this stuff anymore. Will you step in and take over? I relinquish my duties.” It’s like handing off a job; he appoints you as trustee, and he’s out. He can do it voluntarily.
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You get a doctor’s letter that says he is incapacitated and can no longer manage his financial affairs.
00:38:22
Francisco Sirvent: Those are the standard two ways it can happen with a normal trust. What we like to do is have that third option: the trust protector.
A trust protector can trigger that transfer of authority from dad to you without dad’s consent and without dad’s involvement. That might feel harsh, and hopefully it’s never needed—truly, my hope is that it’s never needed. But if it is needed, you want to have this authority in there.
How does it work? Otherwise, it looks like a basic standard trust. Your dad’s the trustee, he’s in charge, and he can make changes. If he wants to resign, he can; if he becomes incapacitated, it triggers, and you take over as successor trustee.
But what if he doesn’t resign, and still has enough capacity to operate day-to-day, but somebody is helping a little too much? Maybe the doctors aren’t quite ready to say he’s incapacitated, creating a gray zone.
00:39:46
Francisco Sirvent: This gray zone is the moment where someone who shouldn’t be involved is starting to insert themselves a little too much. If you’ve seen a couple of highly questionable transactions, that is the moment you trigger the trust protector.
The trust protector is usually the attorney who drafted the trust or someone like that, or the document might state that a trust protector can be designated at the time it becomes necessary. You tell them, “Here’s what’s happening and what I saw with this transaction. I need to step in, but there’s no way my dad’s going to voluntarily turn authority over, I don’t think doctors will declare him incapacitated yet, and I don’t want to have a fight with my dad on that issue. Can I take over?”
The trust protector reviews the situation. If you have a trust protector who understands the family dynamics, all they have to do is sign a document stating that the original trustee (dad) is hereby removed, and the successor (you) is now vested with authority under the provisions of the law and the trust.
00:41:17
Francisco Sirvent: Signed, notarized, and it’s done.
Then you take that document, along with a couple of others, and file it with the bank, against the real estate, with the financial adviser, and across all of his accounts. That immediately takes away his authority to do something harmful against himself with his money.
Is that going to upset him? It probably will, or it might. But we hope we can manage the situation to show him, “We’re not taking away your money; we’re paying all your bills. In fact, we’ll even give this caregiver a raise.” There are ways to navigate the situation to keep dad from being exploited.
Arizona has really good laws creating this trust protector power so that they can’t just do whatever they want to your dad’s trust—they have very limited authority.
00:42:32
Francisco Sirvent: One of those powers is triggering the successor trustee to step in, take over, and remove the authority of the original trustee. That gives you a huge opportunity to protect him from these kinds of predators.
Legal Remedies and Court Actions
If you don’t have something like that in place and exploitation is already underway, this is where a lawsuit has to happen. There might be opportunities to chase the person off, but basically, you’re looking at Arizona’s vulnerable adult exploitation statutes combined with conservatorship. These are very, very ugly court procedures.
You also can look at filing a report with Adult Protective Services (APS). In my experience, like most government agencies, APS is overworked and has way more cases than they can deeply investigate.
00:44:06
Francisco Sirvent: In almost all of the cases I described, APS reports were filed at the beginning, and sadly, APS didn’t really do anything. They create a bunch of paperwork, and then nothing really happens. But it’s worth filing that report because they at least go investigate, and it flags to the bad actor that this is on someone’s radar. APS doesn’t tell your dad or the predator who filed the report—it could have been you, his financial adviser, his banker, or someone else.
In fact, I can think of one circumstance where APS stepped in when they suspected exploitation, but the problem was it wasn’t happening. It created an enormous nightmare that ended up costing this single guy over $200,000 in legal fees. So, there is a love-hate relationship with APS, but that’s the process.
You can also consider filing a lis pendens, but only after you file a lawsuit, in order to freeze deeds or beneficiary deeds from being recorded.
00:45:28
Francisco Sirvent: You can freeze things. If you see someone getting too close and starting to get money from a vulnerable adult, you can file a lawsuit to stop it. Arizona courts are actually pretty quick to act in these situations. Within a week or two of filing, they can freeze all the assets, saying, “We don’t know what’s happening, but we think something is suspicious. We’re freezing everything until we sort through it.”
That can stop the bleeding. We were able to do one of these a few weeks ago involving multi-millions of dollars. We got in and froze real estate, bank accounts, and investment accounts before the person even knew what hit them. So, it is possible. It’s a giant project, costs a lot in legal fees, and causes a lot of stress, but it’s doable.
00:46:35
Recovering Assets After a Parent Passes Away
Francisco Sirvent: Now, what if your parent has already passed away, and that’s when you discover the money has been transferred out of the estate and there’s nothing left in the bank accounts or real estate?
Depending on how much time has passed, that’s going to dictate what you can do. Did dad have a will, a trust, or other legal documents? How recent were they? The same vulnerable adult exploitation laws still apply. You can go after someone for breach of fiduciary duty, fraud, and a bunch of other legal claims. But it requires a lawsuit.
And then, are you even going to find the money? They might have already transferred it across multiple banks, spent it at a casino, or moved it out of the country.
00:47:40
Francisco Sirvent: You have to evaluate all of that. Arizona’s vulnerable adult statutes do provide significant civil damages penalties. If they stole $100,000 from dad, they can be ordered to pay that $100,000 back plus another $200,000, along with attorney’s fees.
There are also criminal statutes for this. While a case has to be pretty severe for a prosecutor to pick it up and file charges, people have been successfully prosecuted and convicted for vulnerable adult exploitation.
If a bad actor got dad to sign a will, trust amendment, or deed leaving things to them, those can be declared invalid by a court. Again, you have to weigh that against the reality of whether you’ll ever get the money back.
We had a case where a bad actor got a beneficiary deed signed and recorded.
00:48:56
Francisco Sirvent: The mom passed away, leaving the house to this bad actor. The son hired us after finding out the house was listed for sale to someone else. By the time he reached us, the house had already sold. We immediately filed a lawsuit to freeze everything and gave the buyer notice in time to freeze the payment transfer to the seller. It was really lucky that we caught it in the middle of the process.
Because the buyer wanted the house and was paying a lot of money for it, we were able to get the bad actor’s beneficiary deed declared invalid. The buyers got their money back, and the estate got the house back. You can get things invalidated, but it’s a giant project and a last resort.
00:50:09
Predatory Marriages
Francisco Sirvent: The last part of this—which we haven’t even talked about—is what happens if somebody convinces dad to get married? This happens.
We had a sad story where a couple was married for 60 years. Mom passed away, leaving a few kids and a significant amount of wealth. The helper who assisted while mom and dad were elderly stayed around to help dad. About 18 months later, dad announced that they had gotten married—past tense.
Everyone knew what was happening: it was obvious gold digging. The kids hired us, filed lawsuits, and sought to freeze assets, but dad still had some mental capacity.
00:51:38
Francisco Sirvent: So he hired his own lawyer to fight it, saying, “I know what I’m doing. She’s the love of my life.” It’s a giant mess still in litigation.
A court can declare a marriage invalid—even posthumously after death—if it can be proven he didn’t have the capacity to understand what getting legally married meant and what the consequences were. A surviving spouse is entitled to a lot of legal minimums even if the will isn’t changed, so you have to watch out for that.
Next Steps and Resources
00:53:07
Francisco Sirvent: The real preventative strategy is setting up the right legal estate planning documents: a will, power of attorney, healthcare directives, and a revocable living trust that includes a trust protector clause. That trust protector gives you the authority to protect your dad without having to go to court—you just work directly with the trust protector. With that, you keep dad’s assets his, keep them as separate property even if he gets married, and keep the money where it’s supposed to be.
That’s what I wanted to talk about today. We don’t do an initial free consultation with attorneys; instead, we do a free phone call with our intake coordinator, Alexis Rico Cortes.
00:54:19
Francisco Sirvent: So much of what we do is nuanced, and we don’t always practice in the exact area someone needs. You don’t need to pay for a consult just to find out we can’t take the case.
Alexis has been doing this for years for us. He helps figure out what’s going on with your family and what you need help with. If it’s something we handle, he can schedule a paid consult with an attorney. If it’s a simple situation, he can walk you through steps A, B, C, and D to get you started.
I’ll share the link to schedule that online. It’s super easy—you can log in this evening after discussing it with your family.
00:55:26
Francisco Sirvent: You can schedule a free 15-minute discovery call directly on our calendar to find a time that works.
I also want to share our upcoming events. We host these webinars multiple times a month on different topics:
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October 7th: “We Have $3 Million to Retire: How Much Is Actually Going to the IRS and How to Fix It”
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October 14th: “Community Property in the Grand Canyon State” (covers how community property affects married couples in Arizona).
00:56:31
Francisco Sirvent: Lastly, please check out our YouTube page. We record all these webinars and post them on YouTube so you can rewatch them, share them with family, or explore past topics. Subscribe to the channel to get notifications as we post new content consistently.
If you need to talk to us about what we covered today, click the link to schedule that 15-minute discovery call with Alexis. Thank you all for coming. I appreciate your time and hope you all have a wonderful day!
