A power of attorney gives your brother authority over your parent’s bank accounts, real estate, investments and retirement plans. If he is using it for himself, your parent’s well-being and the inheritance the family expected are both at risk. Your goals are practical: get the power of attorney revoked, get the money and property back, and if your brother will not cooperate, have a court set the document aside. This page explains what abuse looks like, how to prove it, what you can do about it, and what it costs.
Parents name a child as agent because it is convenient, and the arrangement works when the child is honest. When it does not, the reason is usually that large sums were accessible and nobody was watching. An elderly parent who needs care, is physically frail or is losing capacity is the easiest target, and a dishonest agent can leave that parent, and the parent’s heirs, with nothing. A parent choosing an agent should choose the child who has earned the trust of the others; a parent who has already chosen should expect the other children to keep an eye on things.
What abuse of a power of attorney looks like
The recurring forms are opening joint accounts or naming himself as a beneficiary on your parent’s accounts; buying life insurance on your parent, or changing an existing policy, with himself as beneficiary; buying real estate with your parent’s money or transferring title for his own benefit; gifting your parent’s money to himself, or to other people or charities, without authority; taking property outright; self-dealing; running up your parent’s credit cards; and opening credit in your parent’s name. Any one of these is a breach of the agent’s fiduciary duty. See whether a power of attorney can change ownership for how the gifting and transfer rules work.
How to prove it
The proof is in your parent’s bank statements, brokerage statements and property records. If your brother is abusing the power of attorney you will see transfers to him, unexplained cash withdrawals, or a deed you did not know about. Ask your parent to show you the statements or to give you access. If your parent cannot or will not, an attorney has ways to obtain them.
What you can do
There are four steps, in roughly increasing order of cost and conflict, and most families try them in this order.
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Ask your brother to return the money
It may not work, but it costs nothing. An agent who took the money because he thought no one would notice will sometimes return it once he is found out, rather than face a civil lawsuit or a criminal complaint.
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Ask your parent to revoke the power of attorney
Explain to your parent what the records show and ask them to revoke the document in writing, with a copy to you. A written revocation delivered to your brother ends his authority. Follow up to make sure the banks and brokerages know, and that he no longer has authority over anything of your parent’s.
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Have your parent sue
Your parent can sue your brother for breach of fiduciary duty, tortious interference and related claims, and recover the money and property he took. These cases are complex and time-consuming and almost always need a litigation attorney. The practical obstacle is that the parent is often too old or frail, or lacks the capacity, to bring a lawsuit, and many parents do not want to see their child in trouble with the law.
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Become your parent’s guardian and sue
If your parent cannot act, you can petition for guardianship. As guardian you can bring the same claims against your brother for the benefit of your parent and, ultimately, the estate and its beneficiaries. The downside is that a guardianship proceeding takes away some of your parent’s independence, and your parent may resent you for bringing it. These proceedings too are complex and generally need an attorney experienced in New York guardianship practice.
Will my brother go to jail? Should I call adult protective services?
The conduct described above usually amounts to embezzlement, theft, identity theft, fraud or forgery, all of which are crimes. In practice jail is unlikely: a parent rarely presses charges against a child, and the police tend to treat power of attorney abuse as a civil matter. Adult protective services take the same view, so a report to them about financial abuse alone is unlikely to produce a result. If other kinds of abuse are present, physical neglect for example, report it. For the money, the realistic route is a civil claim brought by an attorney who handles these cases; see our page on elder financial abuse.
How long a power of attorney lasts
A power of attorney remains in effect until the person who made it dies, until it expires if it carries an expiration date, until your parent revokes it by written notice to your brother, or until a court sets it aside after a successful challenge. Our page on when a power of attorney expires has more.
What it costs
We charge by the hour, at $600 per hour, and require a retainer deposit of $4,000 to open a case. Nobody wants to pay a lawyer, but the alternative is a parent who keeps being exploited and an inheritance that keeps shrinking. The Law Offices of Albert Goodwin has handled these disputes since 2008, with offices in Manhattan, Brooklyn and Queens. Call us at 212-233-1233 or email [email protected].
