My Brother is Abusing a Power of Attorney – what can I do about it

When your brother abuses a power of attorney, that can mean serious financial consequences for your parent’s well being and diminishes your future inheritance.

Abuses of powers of attorney can be financially and emotionally devastating to your parent’s estate and their heirs and beneficiaries. If you are suspecting that your brother is abusing a power of attorney, your goals are to

• have your parent revoke the power of attorney
• have your brother return the money and property
• contest the power of attorney
• have the court revoke, set aside or cancel out the power of attorney
• find other ways of assisting your parent

By creating a power of attorney and giving your brother such important powers, your parent exposed themselves to a potential for fraud, self-interest and embezzlement by your brother. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation for your brother.

Children sometimes abuse their parents’ powers of attorney, when the elderly parent needs elder care and are physically disabled or mentally incapacitated. A financially abusive brother could leave a your parent’s estate and their heirs without any assets or inheritance.

Since there is such a huge potential for disagreements and fraudulent acts to arise, creating a power of attorney can lead to potential future lawsuits if parents choose the wrong sibling as the power of attorney. A parent should carefully consider which one of their children (if any) should act as their power of attorney. If a parent does decide to name a child as a power of attorney, they should pick the child who possess traits of trust, honor and integrity and who has earned the trust of their brothers.

What is considered power of attorney abuse

There are plenty of ways in which a person can abuse a power of attorney. Here are some examples:

• Opening joint bank accounts and naming the brother as a beneficiary
• Purchasing life insurance policies and naming the brother as a beneficiary
• changing existing life insurance account beneficiaries
• Purchasing real estate with your parent’s money and transferring title of real estate for the benefit of the brother
• Unauthorized gifting to self
• Unauthorized gifting to individuals and charities
• Theft of property
• Self-dealing
• Unauthorized use of credit cards
• Establishing credit under your parent’s name

What can I do if I suspect my brother is abusing a power of attorney?

Ask your brother to return the money or property

This may or may not work, but you can always just ask your brother to return the money or property. It could be that their plan was to only abuse the power of attorney if they could get away with it. Now that they are discovered, they may decide to cut their losses and not have to deal with a civil lawsuit or even criminal prosecution, and they might just return the money or property in question.

Ask your parent to revoke the power of attorney

The simples thing to do would be to explain to your parent that they are possibly being defrauded by your brother, and ask them to revoke the power of attorney in writing (hopefully with a copy to you). You may or may not choose to follow up and make sure that your brother is no longer in any power of authority over any of your parent’s assets.

Bring a lawsuit against your brother

Your parent can contest the power of attorney in court by suing your brother on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your parent. These matters are complex, time-consuming and most people require the assistance of an experienced litigation attorney to help resolve matters for them in court.

Although your parent can revoke the power of attorney that your brother is abusing and can sue the brother to get the money back, they are often too old and frail and don’t have the will power or sometimes even the mental capacity to bring a lawsuit. They also feel bad for your brother, thinking that they don’t want them to get into any kind of trouble with the law.

Place a guardianship over your parent

One option may be to obtain guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the brother abusing the power of attorney on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to your parent and ultimately to benefit the estate and beneficiaries.

There are some downsides to the guardianship proceeding, the most common downside being that your parent can resent you for bringing a proceeding which compromises their independence. These matters are complex, time-consuming and most people require the assistance of an experienced New York guardianship attorney to help resolve matters for them in court.

Is abusing a power of attorney criminal, can my brother go to jail for it?

A brother abusing a power of attorney can leave your parent’s estate and their heirs without any assets or inheritance. Your brother’s power of attorney abuse described above typically involves one or more of the following potentially criminal conduct:

• Embezzlement
• Theft
• Identity theft
• Fraud
• Forgery

Having said that, it is unlikely that your brother will face jail time, as your parent is unlikely to press charges against their child. Besides, the police tends to view power of attorney abuse as a civil matter.

Can I report the abuse to adult protective services?

Reporting power of attorney abuse to the adult protective services is likely to not yield a result, as those government agencies typically view this issue as a civil matter. Your best opportunity to resolve the situation is to retainer the services of an attorney who has experience in these kind of matters. However, if other types of abuse are present, then you do want to report the abuse to adult protective services.

How can I prove that my brother is abusing a power of attorney

You can prove that your brother is abusing a power of attorney by looking at your parent’s financial statements and property records. If your brother is indeed abusing the power of attorney, then you will see transfers of money or property to your brother or unexplained cash withdrawals. You can ask your parent to show those documents to you or to give you access to those documents. If that is not possible, then your attorney would know how to get those documents.

A power of attorney has a lot of potential for your brother to abuse it

If your parent gave your brother a power of attorney, it may make sense for you to look closely into the arrangement. Perhaps ask for some financial records just to be on the safe side. You can never be too careful when it comes to power of attorney, due to the potential for abuse. A power of attorney gives your brother the authority to make legal and financial decisions for your parent regarding such matters as

• bank accounts, including withdrawals and transfers
• the purchase and sale of real estate
• management of assets
• stock and bond transactions
• retirement plans
• investments
• buying and selling assets

By creating a power of attorney and giving someone such important powers, there is a potential for fraud, self-interest and embezzlement by a your brother, especially where large sums of money and substantial assets are involved and readily accessible. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation that would be hard for your brother to resist.

A power of attorney is in effect until

• The person who made it dies
• It expires (if it has an expiration date)
• It’s revoked by your parent, who can revoke it by giving written notice to your brother
• It is successfully contested and is revoked by the court

How much does it cost to hire a lawyer for this type of matter

Attorneys generally charge by the hour. In our firm, we charge $400 per hour and require a retainer deposit of $4,000 to work on a case. No one likes to spend money on lawyers, but if the alternative is your parent continuing to suffer power of attorney abuse and your future inheritance to keep getting diminished, it seems like an easy choice to make.

We at the Law Offices of Albert Goodwin are here for you. We have offices in Brooklyn, NY, Manhattan and Queens. You can send us an email at [email protected] or call us at 1-800-600-8267.