If your sibling is abusing a power of attorney over your parent, there are two main routes: your parent can revoke the power of attorney, or, if your parent can no longer manage that, you can ask the court for a guardianship that puts financial decisions in other hands. Along the way the goals are to have the power of attorney revoked, to get the money and property back, to contest the power of attorney in court if necessary, and to find some other way of helping your parent that does not depend on the sibling.
Abuse of a power of attorney hurts your parent first, because the money being taken is the money your parent needs for their own care. It also diminishes whatever inheritance would otherwise pass to the rest of the family. Both matter, and a court will look first at your parent’s welfare.
By signing a power of attorney, your parent gave your sibling access to large sums of money and substantial assets with very little day-to-day supervision. That access creates the temptation, and the abuse most often happens when the parent is elderly, physically disabled or mentally incapacitated and needs care. A parent choosing an agent should pick the child the other children already trust; a parent who picks the wrong child sets up the lawsuit that follows.
What counts as power of attorney abuse
An agent under a power of attorney must use the authority for the parent’s benefit. The common ways a sibling misuses it fall into a few groups.
| Type of abuse | Examples |
|---|---|
| Redirecting what passes at death | Opening joint bank accounts with the sibling as co-owner; buying life insurance naming the sibling as beneficiary; changing the beneficiaries on existing life insurance. |
| Moving real estate | Buying real estate with the parent’s money, or transferring title to the parent’s property, for the sibling’s benefit. |
| Unauthorized gifts and self-dealing | Gifts to the sibling, or to other individuals and charities, that the power of attorney does not authorize; transactions that benefit the sibling personally. |
| Theft and credit | Taking property outright; using the parent’s credit cards without authority; opening credit in the parent’s name. |
What you can do if you suspect the abuse
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Ask your sibling to return the money or property
This may or may not work, but it costs nothing to ask. Some siblings only intended to take what they could get away with; once discovered, they would rather return the money than face a civil lawsuit or a criminal complaint.
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Ask your parent to revoke the power of attorney
The simplest step is to explain to your parent that your sibling may be defrauding them and ask your parent to revoke the power of attorney in writing, with a copy to you. Then follow up: make sure the banks and other institutions know of the revocation so your sibling no longer has authority over any of your parent’s assets. See how to take a power of attorney away from someone.
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Bring a lawsuit against your sibling
Your parent can sue your sibling for breach of fiduciary duty, tortious interference or other causes of action to get the embezzled funds or property returned. In practice, the parent is often too old and frail to bring the case, may lack the capacity to do so, and often does not want their own child to get into trouble. That is usually why the matter comes to the other siblings.
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Obtain a guardianship over your parent
If your parent cannot act, you can petition for guardianship. Once appointed, a guardian can bring the lawsuit against the sibling on the parent’s behalf and recover the money or property for the parent and, ultimately, for the estate and its beneficiaries. The main downside is that a parent can resent a child who brings a proceeding that limits their independence, and guardianship proceedings are complex and time-consuming.
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Is abusing a power of attorney a crime? Can my sibling go to jail?
The conduct described above usually amounts to embezzlement, theft, identity theft, fraud or forgery. Jail is nonetheless unlikely: the parent is the victim and rarely wants to press charges against their own child, and the police tend to treat power of attorney abuse as a civil matter. The realistic remedy is a civil case to get the money back.
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Can I report the abuse to adult protective services?
A report to adult protective services about financial abuse alone is unlikely to produce a result, because those agencies also tend to see it as a civil matter. If other kinds of abuse or neglect are present, report them. For the financial abuse, the effective step is to retain an attorney with experience in these matters.
How to prove your sibling is abusing the power of attorney
The proof is in your parent’s financial statements and property records. If the abuse is real, the statements will show transfers of money or property to your sibling, or unexplained cash withdrawals. Ask your parent to show you those documents or to give you access to them. If that is not possible, an attorney knows how to obtain them; see our page on investigating a power of attorney.
How much authority a power of attorney gives
If your parent gave your sibling a power of attorney, it is reasonable to look closely at the arrangement and to ask for financial records even if nothing seems wrong. A power of attorney typically gives the agent authority over bank accounts, including withdrawals and transfers, the purchase and sale of real estate, management of assets, stock and bond transactions, retirement plans and investments. Where large sums are involved and readily accessible, the potential for fraud, self-interest and embezzlement is real.
When a power of attorney ends
A power of attorney stays in effect until the person who made it dies, until it expires if it carries an expiration date, until your parent revokes it by giving written notice to your sibling, or until it is successfully contested and revoked by the court.
What a lawyer costs for this kind of matter
Attorneys generally charge by the hour. Our firm charges $600 per hour and requires a retainer deposit of $4,000 to take on a case. Nobody likes spending money on lawyers, but the alternative is a parent who keeps losing money to the abuse and an inheritance that keeps shrinking.
If you would like to discuss a sibling’s misuse of a power of attorney, call 212-233-1233 or email [email protected].
