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How to Contest a Power of Attorney in order to prevent abuse

how to contest a power of attorney

If you are suspecting that someone is financially abusing your loved one through a power of attorney, your first instinct is to lear how to contest the power of attorney, in order to minimize the damage and to have the property returned to your loved one.

If you are suspecting power of attorney abuse:

Abuses of powers of attorney can be financially and emotionally devastating to a person’s estate and their heirs and beneficiaries. If you are alleging power of attorney abuse, your goals are to

  • contest the power of attorney
  • have the power of attorney agent return the money and property
  • have the court revoke, set aside or cancel out the power of attorney
  • punish the agent in a criminal proceeding
  • find other ways of assisting your loved one

If your loved one is suffering from power of attorney abuse, it can mean serious financial consequences for their well-being and diminishes your future inheritance. Power of attorney abuse occurs frequently in connection with elder care or the care of a person who is physically disabled or mentally incapacitated.

If you are looking into how to contest a power of attorney, you are likely to need representation from an attorney who has experience with power of attorney abuse litigation, settlements and mediation. We at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

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 power of attorney Agent as a beneficiary
  • Purchasing life insurance policies and naming the Agent as a beneficiary
  • changing existing life insurance account beneficiaries
  • Purchasing real estate with the principal’s money and transferring title of real estate for the benefit of the Agent
  • Unauthorized gifting to self
  • Unauthorized gifting to individuals and charities
  • Theft of property
  • Self-dealing
  • Unauthorized use of credit cards
  • Establishing credit under the principal’s name

A person perpetrating power of attorney abuse can leave a person’s estate and their heirs without any assets or inheritance. Power of attorney abuse such as the conduct described above typically involves one or more of the following potentially criminal conduct:

  • Embezzlement
  • Theft
  • Identity theft
  • Fraud
  • Forgery

What can I do if I suspect power of attorney abuse?

Ask your loved one to revoke the power of attorney

The simples thing to do would be to explain to your loved one that they are possibly being defrauded, 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 the person suspected of abusing the power of attorney is no longer in any power of authority over any of your loved one’s assets.

Ask the power of attorney agent to return the money or property

This may or may not work, but you can always just ask the power of attorney agent 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.

Bring a lawsuit to contest the power of attorney

The maker or their potential heirs can contest the power of attorney in court by suing the representative directly on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to the estate and beneficiaries. These matters are complex, time-consuming and most people require the assistance of an experienced New York litigation attorney to help resolve matters for them in court.

Although your loved one can revoke the power of attorney that and can sue the power of attorney agent 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 the person who took the money from them, thinking that they don’t want them to get into any kind of trouble with the law.

The best way to contest a power of attorney might be to place a guardianship over your loved one

You will not be able to contest the power of attorney on your own, as you don’t have what we call the legal standing. You cannot sue on behalf of your loved one. And they are not likely to sue on their own, because it’s a difficult process and the person abusing the power of attorney is someone they care about. If you want to contest the power of attorney, the way to do that is through obtaining a guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the person 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 the loved one, and ultimately to benefit the estate and beneficiaries.

There are some downsides to the guardianship proceeding, the most common downside being that your loved one 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 litigation attorney to help resolve matters for them in court.

Is abusing a power of attorney criminal, can I get the police involved and can a person go to jail for it?

Power of attorney abuse can involve state and federal crimes of embezzlement, theft, identity theft, fraud or forgery, but it is unlikely that the power of attorney agent will face jail time, as the victim is unlikely to press charges against them and the police tends to view power of attorney abuse as a civil matter. So the only way you can contest a power of attorney is likely to be in civil court, a criminal proceeding would not be the way to go.

Can I report the abuse to adult protective services?

Reporting power of attorney abuse to the adult protective services is not a way to contest a power of attorney. It 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 power of attorney abuse

In order to contest a power of attorney, you would need to prove power of attorney abuse. You can prove power of attorney abuse by looking at the financial statements and property records of the person who made the power of attorney. If power of attorney abuse took place, then you will see transfers of money or property to the power of attorney principal or unexplained cash withdrawals. You can ask your loved one 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 abuse

If your loved one gave someone a power of attorney, it may make sense for you to look closely into the arrangement and for possible ways of how to contest the power of attorney. 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 a person the authority to make legal and financial decisions for someone else 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 the power of attorney agent, 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 is hard to resist for some people.

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 the principal, who can revoke it by giving written notice to the power of attorney agent
  • It is successfully contested and is revoked by the court

How much does it cost to hire a lawyer to contest a power of attorney

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 relative continuing to suffer power of attorney abuse and your future inheritance to keep getting diminished, or having power of attorney abuse accusations being undefended, it seems like an easy choice to make.

Where can I find an attorney near me who knows how to contest a power of attorney?

We at the Law Offices of Albert Goodwin are here for you. If you are looking for an attorney who knows how to contest a power of attorney, get in touch with our firm. We have offices in Brooklyn, NY, Manhattan and Queens. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

Can a Trustee Also be a Beneficiary

can a trustee also be a beneficiary

Yes, a trustee can also be a beneficiary, and they often are. But in some types of trusts, a trustee cannot be a beneficiary.

Many trusts have the same people fulfilling multiple roles. As lawyers like to say, the same person can “wear many hats.” We often have the person who made the trust fulfill multiple roles, the same person can be the maker of the trust, the trustee and the beneficiary.

Let’s say John made a trust, becoming its first trustee and beneficiary. After John’s death, his son Tom becomes the trustee and beneficiary. That is a perfectly reasonable scenario.

However, although a trustee can also be a beneficiary in many types of trusts, for some types of trusts the rules about trustees and beneficiaries get more complicated and you would need to speak to a New York trust attorney to find out the details.

For example, in a Medicaid trust, the person who made the trust has limitations on becoming the trustee and beneficiary, so that the trust complies with Medicaid rules. As another example, in some spendthrift trusts, the trustee cannot be a beneficiary, so that creditors don’t have access to the principle of the trust.

As a beneficiary, the beneficiary-trustee is entitled to distributions of trust assets if the trust authorizes such distributions. Here are some examples of the different types of trust distribution arrangements for beneficiaries:

  • An immediate distribution upon the death of the person who made the trust
  • An immediate distribution upon reaching a certain age (for example, 18 or 25)
  • A distribution of principal
  • A distribution of income
  • A monthly distribution
  • A distribution in some point in time

Just like any other trustee, the beneficiary trustee has a duty of utmost fiduciary responsibility to the other beneficiaries of the trust. Just like any other trustee, a trustee-beneficiary is not supposed to intermingle his assets with estate assets, withdraw funds from the trust for his own use not in accordance with trust terms and steal from the other beneficiaries of the trust in any way. When a trustee takes money from the trust that they are not supposed to take, that’s called stealing even though some of the money they took ultimately belong to them. For example, a man left a trust for his four children, and one of the children is a trustee. Can the trustee-child withdraw cash from the trust and say that he is just withdrawing his own cash? The answer to that is absolutely not. Even though the trustee is one of the beneficiaries of the trust, at the end of the day the trust is not his. The trust belongs to all the beneficiaries. So if a trustee uses the trust’s money for his own needs in any way or transfers trust money to himself, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he takes four thousand dollars, he is not taking four thousand dollars of his own money. He is stealing a thousand dollars from each of his siblings. If he takes a penny, most of that penny belongs to the other beneficiaries of the trust.

What can happen if a trustee who is the beneficiary neglects good advice and does withdraw cash from the trust account? Nothing good. The trustee can be removed by the court. The court will force the trustee to return the money. The court might order the trustee to pay for his own attorneys’ fees as opposed to using trust funds to pay for his attorney’s fees. The judge may even order the trustee to pay the beneficiaries’ attorneys’ fees. What is scarier is that the trustee can even be criminally prosecuted for stealing. That’s right, a criminal prosecution even if the trustee is one of the beneficiaries of the trust and even if the amount he took is less than his stake in the trust account. The judge can refer the case to the District Attorney’s office, which has the power to prosecute the case in criminal court, although that rarely happens.

To sum up, in some trusts a trustee can also be a beneficiary, and in some trusts that cannot be done. And always remember that whether a beneficiary or not, a trustee has to always be careful to follow fiduciary rules of the trust.

If you need the services of a New York trust attorney, you can contact Albert Goodwin, Esq. at 718-509-9774 or (718) 509-9774.

What an Executor Cannot Do

what an executor cannot do
We will start with a checklist of what an executor cannot do and then explain each item in detail.

Here is a list of what an executor cannot do:

  • Steal from the estate
  • Fail to follow the terms of the will
  • Mismanage estate assets including bank accounts, stock, bonds, retirement accounts, pensions
  • Fail to take inventory of assets, including personal and real property
  • Be negligent or careless in investing assets
  • Sell personal and real property below market price
  • Fail or refuse to distribute assets
  • Fail to pay creditors
  • Fail to pay estate claims
  • Fail to pay funeral expenses
  • Fail to file an estate tax return if required, fail to pay estate taxes and back income taxes
  • Mismanage estate business or sell it below market value, whether to himself or to someone else
  • Take over the estate business for the executor’s own gain
  • Commingle estate funds with his own funds
  • Keep estate funds in a personal account (you need an estate account)
  • Ignore beneficiaries
  • Fail to communicate with beneficiaries
  • Keep beneficiaries misinformed about estate and financial matters
  • Favor one beneficiary over another
  • Fail to wind up and settle an estate
  • Refuse to distribute assets to the beneficiaries

Acting an executor is a big responsibility, and one needs to be careful not to do the wrong thing. If you think that the executor is doing something wrong, or you are an executor who is being accused of doing something wrong, you need to get in touch with an experienced estate litigation attorney. You can send us an email at attorneyalbertgoodwin@gmail.com.

An executor is named by a testator (the person who made the will) at the time a will is made. After the death of the testator, the executor is confirmed by the probate court. The executor cannot fail to carry out the wishes and intent of the testator and cannot act in bad faith, fail to represent the best interests of the beneficiaries at all times during the probate administration of the estate and fail to wind up close an estate. An executor cannot fail to initiate the filing of a Probate proceeding with the probate court by filing the original will and death certificate with the court and is responsible for obtaining and filing any other necessary documentation that the court may require. An executor cannot fail to carry out their duties. And most importantly, the executor cannot steal from the estate.

There are all sorts of other contractual or legal matters that may require an executor’s attention. For instance, if the testator owned commercial property and had tenants, the executor may have to collect rents, work with a property management company or hire one depending on the size of the building and the number of tenants. What an executor cannot do is fail to work with attorneys and accountants in order to make sure assets are properly valued and contractual obligations are completed.

Stealing from the estate. There are significant penalties for stealing from an estate. The court can discharge the executor and replace them with someone else, force them to return the money and take away their commissions. There can also be criminal a penalty, but most estate theft allegations do not escalate to criminal prosecution.

Taking more funds than the executor is entitled to. It can be tempting for an executor to take some extra cookies from the cookie jar. You have access to estate funds and the power to take some funds out. You don’t see anyone looking over your shoulder.  But that sense of safety is false. Banks and courts have systems in place to detect fraud. Beneficiaries can get suspicious and hire an estate attorney or report the suspect to the police and hire an estate attorney to get the inheritance that they are entitled to.

Self-dealing. The executor cannot transfer estate property to himself because the property belongs to someone else unless he pays the full price for it. As explained above, doing so can be interpreted as stealing and can lead to an array of legal woes. A smart executor would want to avoid transferring estate assets to himself, even if paying fair and market value. If beneficiaries are getting more money than they would have, if not for the executor buying them out, the executor should explain it to the beneficiaries. For example, the executor can explain the savings on transaction costs, such as not having to pay a broker. There must be a feeling that the executor fulfilled his responsibilities to the beneficiaries.

Failure to Communicate with the beneficiaries. The executor should communicate with the beneficiaries, be transparent about the money he is taking from the estate, explain the reasoning behind it and try to get on the same page with the beneficiaries. The executor cannot fail to communicate.

Commingling funds. The executor should place all estate funds into an estate account and not into his personal account. New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 11-1.6 states that “Every fiduciary shall keep property received as fiduciary separate from his individual property.  He cannot invest or deposit such property with any corporation or other person doing business under the banking law, or with any other person or institution, in his own name, but all transactions by him affecting such property shall be in his name as fiduciary.” Surrogate’s Court Procedure Act – SCP § 719 states that the court can take away a person’s power to manage the estate “where he mingles the funds of the estate with his own or deposits them with any person, association or corporation authorized to do business under the banking law in an account other than as fiduciary.”

Using estate funds for personal expenses. The executor can only use estate funds to pay the legitimate expenses of the estate, taxes and legal fees.

Distributing property without getting signed releases from beneficiaries. Once the executor collects the assets of the estate and pays out its debts, it’s time for the executor or administrator of a New York estate to disburse the funds to the beneficiaries. But before the executor does that, it is important to get a written release from the beneficiaries. The release states that the beneficiaries are satisfied with what they are getting and are never going to sue the executor. The best release comes with an informal accounting, which provides a summary of what property went into the estate, what the expenses were, and what is the share of inheritance for each beneficiary.

An executor is entitled to receive compensation for his or her services in accordance with the law. When a spouse or a family member acts as executor, many times they do not take compensation for their services, especially when they are also a beneficiary receiving a distribution of assets under the will. An executor cannot take compensation that is in excess of what they are allowed to take by law.

An executor is held a higher standard of behavior and is expected to act in an honest, fair and ethical manner. An executor cannot breach their fiduciary duty.  They could be held legally liable for any losses suffered by the estate or beneficiaries. An executor can be removed by the beneficiaries for breach of fiduciary duty and could be subject to restitution of any financial losses to the estate and beneficiaries, as well as face criminal charges if the executor committed any crimes such as embezzlement of estate assets.

Because there are many things that an executor cannot do, some family members decide they do not want to take on the job and end up resigning and hiring an attorney or another personal representative to replace them and administer the estate.

If you wish to speak to hire a New York estate attorney to assist you with your duties as executor, call the Law Offices of Albert Goodwin at 718-509-9774.

Stealing from a Trust. How Do I Get the Money Back. What are the Penalties.

the penalty for stealing from a trust

There can be a significant penalty for stealing from a trust.

There are two types of penalties – civil and criminal.

As a civil penalty, the court can force the trustee to return the property or money, possibly with interest, as well as pay fines and the winning side’s attorney’s fees. The court can also discharge the trustee, replace them with someone else and take away their commissions.

There can also be criminal a penalty. Most trust theft allegations tend not to escalate to the level of criminal prosecution, but theft allegations of substantial amounts that can be proven by strong evidence can rise to that level.

If you are dealing with stealing from a trust and you need to consult with an attorney, you can send us an email at attorneyalbertgoodwin@gmail.com.

Civil penalties and what you can do to make things better

Turnover. Beneficiaries can bring a proceeding for Discovery and Turnover. If the court grants the turnover, then it will force the trustee to return property that he wrongfully transferred.

Surcharge. Beneficiaries will ask the court to surcharge the trustee who they are claiming took more than they are entitled to. If the trustee is one of the beneficiaries, then the court can surcharge the trustee’s share of the trust, giving some or all of the trustee’s share to the other beneficiaries. Surcharge here means charging the person who stole the money with having to return the money. It’s a legal term, used a little differently than the common way we use the word surcharge.

Discharge of trustee. The judge of the Surrogate’s Court can discharge the trustee from their position, taking away their power to manage the trust. The judge can discharge and remove the trustee “by reason of his having wasted or improperly applied the assets of the trust.”[1] The court can appoint someone else as the trustee instead, typically one of the beneficiaries who brought the proceeding to remove the misbehaving trustee.

Attorneys’ fees. Trustees use trust funds for their defense. If the court finds that the trustee improperly took funds from the trust, the court can order the trustee to reimburse the trust for their attorneys’ fees. In some cases, the court can even order the trustee to pay the beneficiaries’ attorneys’ fees.

Waiver of commission. A trustee is entitled to a commission for their services. As a penalty for stealing from the trust, the court can take away the trustee’s right to receive the commission.

Criminal Penalties for Stealing from a trust

It is not common for a trustee of a trust to be criminally prosecuted, but it does happen. A trustee or anyone else improperly taking money from a trust can be subject to criminal prosecution for theft from the trust, even if they are one of the beneficiaries. Taking more than you are entitled to by law can be interpreted as stealing from the other beneficiaries of the trust. Everyone has their side of the story, and it could be that the beneficiaries’ allegations of theft are unfounded. But if the District Attorney’s office decides to bring charges, then the potential penalties can be significant.

The alleged thief’s side of the story. Trustees or others who are accused of stealing have their own side of the story. They say that they are

  • paying for trust expenses
  • taking their legal fees
  • taking their share as a beneficiary
  • or commingling funds by mistake

Whether the trustee is caught stealing and is now making an excuse or the trustee did have a valid reason to transfer trust property to themselves is up to the court to decide, unless the trustee makes a plea agreement with the District Attorney’s office.

The penal law. The trust is the owner of the property. When a trustee is stealing from the trust, he commits larceny. New York’s Penal Law (the Criminal Law) states that “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” [2] New York Penal Law continues to say that “Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed … by conduct heretofore defined or known as common law larceny by trespassory taking, common-law larceny by trick, embezzlement, or obtaining property by false pretenses.” [3]

Sentencing guidelines. New York Penal Law 155 describes the sentencing guidelines for someone stealing from a trust. The sentence depends on the amount that the trustee steals. A trustee convicted of larceny can incur a sentence of up to twenty-five years in prison.

Amount Stolen Type of Grand Larceny Section of Penal Code Felony Class Penalty
In excess of $1,000 but not more than $3,000 Fourth Degree PL 155.30(1) Class E Felony up to 4 years in prison
In excess of $3,000 but not greater than $50,000 Third Degree PL 155.35 Class D Felony up to 7 years in prison
In excess of $50,000 but is not more than $1 million Second Degree PL 155.40(1) Class C Felony up to 15 years in prison
In excess of $1 million First Degree PL 155.42 Class B Felony up to 25 years in prison

Restitution. The court can force the trustee to return the property to the trust and pay restitution to the beneficiaries.

Although we talk about a trustee, the same rules apply to an administrator and a trustee, as well as a preliminary trustee, administrator d.b.n., administrator c.t.a.d.b.n., administrator c.t.a., ancillary trustee, ancillary administrator, and ancillary administrator c.t.a. [4] Trustees are not the only ones who can be accused of stealing from the trust. Anyone who has access to funds of the trust could potentially be a thief, such as the attorney, real estate broker, financial advisor, caretakers and others.

How a trustee can avoid penalties

Do not take more funds than you are entitled to. Don’t do anything that would make it look like you are stealing from the trust. It can be tempting for a trustee to take some extra cookies from the cookie jar. You have access to trust funds and the power to take some funds out. You don’t see anyone looking over your shoulder. But that sense of safety is false. Banks and courts have systems in place to detect fraud. Beneficiaries can get suspicious and hire a trust attorney or report the suspect to the police and hire a trust attorney to get the inheritance that they are entitled to.

Avoid self-dealing. The trustee cannot transfer trust property to himself because the property belongs to someone else unless he pays the full price for it. As explained above, doing so can be interpreted as stealing from the trust and can lead to an array of legal woes. A smart trustee would want to avoid transferring trust assets to himself, even if paying fair and market value. If beneficiaries are getting more money than they would have, if not for the trustee buying them out, the trustee should explain it to the beneficiaries. For example, the trustee can explain the savings on transaction costs, such as not having to pay a broker. There must be a feeling that the trustee fulfilled his responsibilities to the beneficiaries.

Communicate with the beneficiaries. The trustee should communicate with the beneficiaries, be transparent about the money he is taking from the trust, explain the reasoning behind it and try to get on the same page with the beneficiaries.

Do not commingle funds. The trustee should place all trust funds into a trust account and not into his personal account unless he wants to be accused of stealing from the trust. New York Consolidated Laws, Trusts, Powers and Trusts Law – EPT § 11-1.6 states that “Every fiduciary shall keep property received as fiduciary separate from his individual property.  He shall not invest or deposit such property with any corporation or other person doing business under the banking law, or with any other person or institution, in his own name, but all transactions by him affecting such property shall be in his name as fiduciary.” [4] Surrogate’s Court Procedure Act – SCP § 719 states that the court can take away a person’s power to manage the trust “where he mingles the funds of the trust with his own or deposits them with any person, association or corporation authorized to do business under the banking law in an account other than as fiduciary.”[5]

Do not use trust funds for personal expenses. The trustee can only use trust funds to pay the legitimate expenses of the trust, taxes and legal fees.

Do not distribute any property without getting signed releases from beneficiaries. Once the trustee collects the assets of the trust and pays out its debts, it’s time for the trustee or administrator of a New York trust to disburse the funds to the beneficiaries. But before the trustee does that, it is important to get a written release from the beneficiaries. The release states that the beneficiaries are satisfied with what they are getting and are never going to sue the trustee. The best release comes with an informal accounting, which provides a summary of what property went into the trusts, what the expenses were, and what is the share of inheritance for each beneficiary.

Having your New York trust lawyer get a release from beneficiaries is especially crucial when the trustee is one of the beneficiaries. For example, if the trustee is transferring a share of the decedent’s business, house, or other property to themselves, the trustee should obtain a written release from the beneficiaries, or at least get them to approve it in writing, to avoid the possibility of the authorized transfer being misconstrued as self-dealing or commingling of funds.

If you feel things like “my family stole my inheritance,” or “my inheritance is being stolen,” it’s time to speak to an attorney.

Whether you are a beneficiary and you are claiming that the trustee is stealing from the trust or if you are a trustee and you insist that the transfer of money or property was proper, we at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com or call us at 1-800-600-8267. We have offices in New York, NY, Queens, NY and Brooklyn, NY.


[1] SCP § 711Suspension, modification or revocation of letters or removal for disqualification or misconduct

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.1

[4] NY EPTL § 11-1.6

[5] SCP § 719 – In what cases letters may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process

Sister Stealing from an Estate. How Can I Get the Money Back?

sister stealing from an estate
When your sister is stealing from an estate, it’s usually because the temptation is simply too hard to resist. It comes down to greed. People can come up with all sorts of elaborate excuses for the theft, and then use a number of schemes to cover up what they did. When siblings have a strained relationship or when they were geographically separated for a long time, they will sometimes deny the other siblings their share of the inheritance.

If your sister is stealing from an estate, there’s a lot you can do. You have legal options available and an estate lawyer will likely be able to get the money and property back for you.

You can try to recover stolen inheritance by requesting your sister to restore or return it back to the estate.

This may or may not work, but you can always just ask your sister to return the money or property. It could be that her plan was to only take the property if she could get away with it. Now that he is discovered, she may decide to cut her losses and not have to deal with a civil lawsuit or even criminal prosecution, and she might just return the money or property in question.

As a matter of fact, you can put this article on pause and try to get in touch with her right now.

If that worked, great, we’re done here.

If that did not work, you can keep on reading. Your next step would probably be to sue your sister in court. If you need an attorney to recover stolen inheritance, you can send us an email to attorneyalbertgoodwin@gmail.com.

Once you get an attorney, they will ask you about the circumstances of the theft. Eventually, your attorney will put all of those circumstances in writing and will submit the writing to the court in a form of a petition or complaint.

What are the red flags that your sister is stealing from an estate?

Do you see a sudden increase in your sister’s spending? Is your sister buying nicer clothing? Bought or leased a new car? Bough a new house or is renovating their house? Sending their kids to an expensive school? While those things don’t prove that your sister is stealing from the estate, they could be red flags.

What can we do about the theft?

The simple answer is, we try to get the money back. Where the sister refuses to return the money, we sue her and execute her property in favor of the estate. There are a number of remedies available to force your sister to return the money.

Accounting. The standard process in the Surrogate’s Court is to compel your sister to provide a formal accounting. Once your sister provides the accounting, the beneficiary has a chance to object to the accounting. If the court finds that your sister stole from the estate, the court will surcharge your sister. If your sister is also a beneficiary, the court will deduct the money from your sister’s share. If your sister is not a beneficiary, the court can surcharge herwith the money she stole.

Turnover Proceeding. If your sister stole property as opposed to money, the beneficiary’s estate lawyer can bring a proceeding for turnover of the property.

Bonding. Sometimes there is a bond on a sister who is an executor. A bond is a kind of insurance against executor theft. If you are lucky enough that there is a bond, or your estate lawyer was experienced enough to apply for a bond, then you can make a claim against the bonding company if your sister is found to steal money or property but the money is impossible to recover from your sister.

But how about if your sister is also a beneficiary? Don’t some of the money in the estate also belong to him? For example, a lady left her inheritance to her four children. Can the executor-sister steal from the estate and say that she is just withdrawing her own cash? The answer to that is absolutely not. Even though your sister is one of the beneficiaries of the estate account, at the end of the day the is not his. The estate belongs to all the beneficiaries. So if your sister withdraws cash from the estate account, she is considered by the law to be taking everyone’s money, not just her own. As an example, if she withdraws four thousand dollars in cash, she is not considered to be taking four thousand dollars of her own cash from the estate account. Rather, she is considered to be stealing a thousand dollars from each of her siblings. If she withdraws a penny, most of that penny belongs to the other beneficiaries.

What are the potential penalties for your sister?

What can happen if your sister is an executor and neglects good advice and steals from the estate? Nothing good. Your sister can be removed from being executor can be by the judge on the case. The court will force your sister to return the money. The court might order your sister to pay for her own attorneys’ fees as opposed to using estate funds to pay for her attorney’s fees. The judge may even order your sister to pay the wronged sister’s attorneys’ fees. What is scarier is that if your sister is an executor, they could be criminally prosecuted for stealing. That’s right, a criminal prosecution even if the executor is one of the beneficiaries of the estate and even if the amount she took is less than her stake in the estate account. The Surrogate’s Court judge can refer the case to the District Attorney’s office, which has the power to prosecute the case in criminal court.

Although we talk about a sister who is an executor, the same rules apply to an administrator and a trustee, as well as a preliminary executor, administrator d.b.n., administrator c.t.a.d.b.n., administrator c.t.a., ancillary executor, ancillary administrator, and ancillary administrator c.t.a. [1]

Above, we’ve referred to the executor as a manager. The legal term for someone managing money, including an executor is “fiduciary.” [2] New York’s Estates, Powers and Trusts Law governs the conduct of an estate fiduciary, as well as a trustee and an agent under a Power of Attorney.

New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 11-1.6 states that “Every fiduciary shall keep property received as fiduciary separate from her individual property.  He shall not invest or deposit such property with any corporation or other person doing business under the banking law, or with any other person or institution, in her own name, but all transactions by him affecting such property shall be in her name as fiduciary.” [3]This includes taking cash from an estate account.

New York’s Penal Law (the Criminal Law) states that “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” [4]

The estate is the owner of the funds. By stealing from the estate account, a sister who is an executor commits larceny.

New York Penal Law continues to say that “Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed … by conduct heretofore defined or known as common law larceny by trespassory taking, common-law larceny by trick, embezzlement, or obtaining property by false pretenses.” [5]

To sum up, sisters who are executors should keep estate funds where they belong-in the estate account. Whenever they receive any funds relating to the estate in any way, those funds should be deposited into the estate and not withdrawn without either signed consent from each and every beneficiary or an order of the court authorizing your sister to disburse the funds.

Whether you are a beneficiary who thinks that your sister is stealing from the estate account, or if you are an executor and you feel that your sister is falsely accusing you of stealing from the estate account, you can speak with New York estate attorney Albert Goodwin, Esq. He can be reached at 718-509-9774 or (718) 509-9774.

[1] NY EPTL § 11-1.1

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.6

[4] NY PEN § 155.05

[5] NY PEN § 155.05

Brother Stealing from an Estate. How Can I Get the Money Back?

brother stealing from an estate

When your brother is stealing from an estate, it’s usually because the temptation is simply too hard to resist. It comes down to greed. People can come up with all sorts of elaborate excuses for the theft, and then use a number of schemes to cover up what they did. When siblings have a strained relationship or when they were geographically separated for a long time, they will sometimes deny the other siblings their share of the inheritance.

If your brother is stealing from an estate, there’s a lot you can do. You have legal options available and an estate lawyer will likely be able to get the money and property back for you.

You can try to recover stolen inheritance by requesting your brother to restore or return it back to the estate.

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

As a matter of fact, you can put this article on pause and try to get in touch with your brother right now.

If that worked, great, we’re done here.

If that did not work, you can keep on reading. Your next step would probably be to sue your brother in court. If you need an attorney to recover stolen inheritance, you can send us an email to attorneyalbertgoodwin@gmail.com.

Once you get an attorney, they will ask you about the circumstances of the theft. Eventually, your attorney will put all of those circumstances in writing and will submit the writing to the court in a form of a petition or complaint.

What are the red flags that your brother is stealing from an estate?

Do you see a sudden increase in your brother’s spending? Is your brother buying nicer clothing? Bought or leased a new car? Bough a new house or is renovating their house? Sending their kids to an expensive school? While those things don’t prove that your brother is stealing from the estate, they could be red flags.

What can we do about the theft?

The simple answer is, we try to get the money back. Where an executor refuses to return the money, we sue the executor and execute his property in favor of the estate. There are a number of remedies available to force your brother to return the money.

Accounting. The standard process in the Surrogate’s Court is to compel your brother to provide a formal accounting. Once your brother provides the accounting, the beneficiary has a chance to object to the accounting. If the court finds that your brother stole from the estate, the court will surcharge your brother. If your brother is also a beneficiary, the court will deduct the money from your brother’s share. If your brother is not a beneficiary, the court can surcharge him with the money he stole.

Turnover Proceeding. If your brother stole property as opposed to money, the beneficiary’s estate lawyer can bring a proceeding for turnover of the property.

Bonding. Sometimes there is a bond on a brother who is an executor. A bond is a kind of insurance against executor theft. If you are lucky enough that there is a bond, or your estate lawyer was experienced enough to apply for a bond, then you can make a claim against the bonding company if your brother is found to steal money or property but the money is impossible to recover from your brother.

But how about if your brother is also a beneficiary? Don’t some of the money in the estate also belong to him? For example, a lady left her inheritance to her four children. Can the executor-brother steal from the estate and say that he is just withdrawing his own cash? The answer to that is absolutely not. Even though your brother is one of the beneficiaries of the estate account, at the end of the day the is not his. The estate belongs to all the beneficiaries. So if your brother withdraws cash from the estate account, he is considered by the law to be taking everyone’s money, not just his own. As an example, if he withdraws four thousand dollars in cash, he is not considered to be taking four thousand dollars of his own cash from the estate account. Rather, he is considered to be stealing a thousand dollars from each of his brothers. If he withdraws a penny, most of that penny belongs to the other beneficiaries.

What are the potential penalties for your brother?

What can happen if your brother is an executor and neglects good advice and steals from the estate? Nothing good. Your brother can be removed from being executor can be by the judge on the case. The court will force your brother to return the money. The court might order your brother to pay for his own attorneys’ fees as opposed to using estate funds to pay for his attorney’s fees. The judge may even order your brother to pay the wronged brother’s attorneys’ fees. What is scarier is that if your brother is an executor, they could be criminally prosecuted for stealing. That’s right, a criminal prosecution even if the executor is one of the beneficiaries of the estate and even if the amount he took is less than his stake in the estate account. The Surrogate’s Court judge can refer the case to the District Attorney’s office, which has the power to prosecute the case in criminal court.

Although we talk about a brother who is an executor, the same rules apply to an administrator and a trustee, as well as a preliminary executor, administrator d.b.n., administrator c.t.a.d.b.n., administrator c.t.a., ancillary executor, ancillary administrator, and ancillary administrator c.t.a. [1]

Above, we’ve referred to the executor as a manager. The legal term for someone managing money, including an executor is “fiduciary.” [2] New York’s Estates, Powers and Trusts Law governs the conduct of an estate fiduciary, as well as a trustee and an agent under a Power of Attorney.

New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 11-1.6 states that “Every fiduciary shall keep property received as fiduciary separate from his individual property.  He shall not invest or deposit such property with any corporation or other person doing business under the banking law, or with any other person or institution, in his own name, but all transactions by him affecting such property shall be in his name as fiduciary.” [3]This includes taking cash from an estate account.

New York’s Penal Law (the Criminal Law) states that “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” [4]

The estate is the owner of the funds. By stealing from the estate account, a brother who is an executor commits larceny.

New York Penal Law continues to say that “Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed … by conduct heretofore defined or known as common law larceny by trespassory taking, common-law larceny by trick, embezzlement, or obtaining property by false pretenses.” [5]

To sum up, brothers who are executors should keep estate funds where they belong-in the estate account. Whenever they receive any funds relating to the estate in any way, those funds should be deposited into the estate and not withdrawn without either signed consent from each and every beneficiary or an order of the court authorizing your brother to disburse the funds.

Whether you are a beneficiary who thinks that your brother is stealing from the estate account, or if you are an executor and you feel that your brother is falsely accusing you of stealing from the estate account, you can speak with New York estate attorney Albert Goodwin, Esq. He can be reached at 718-509-9774 or (718) 509-9774.

[1] NY EPTL § 11-1.1

[2] NY EPTL § 11-1.1

[3] NY EPTL § 11-1.6

[4] NY PEN § 155.05

[5] NY PEN § 155.05

A Caretaker Abusing a Power of Attorney – what can you do about it

the caretaker abusing a power of attorney

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

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

Caretaker can abuse your loved one’s powers of attorney, when the elderly person elder care and are physically disabled or mentally incapacitated. A financially abusive the caretaker could leave a your loved one’s estate and their heirs without any assets or inheritance.

A power of attorney gives the caretaker the authority to make legal and financial decisions for your loved ones regarding such matters as bank accounts, the purchase and sale of real estate and the management, stock and bond transactions, retirement plans, investments and disposition of other assets.

(At least the power attorney doesn’t work for things such as voting, revoking or amending a will, divorce or marriage matters or fulfilling personal services under a contract matter.)

A power of attorney is in effect until your loved one dies unless there is an expiration limit. Or, your loved one can revoke the power of attorney at any time by giving written notice to the caretaker (hopefully with a copy of the notice to you). Abuses of powers of attorney by a the caretaker can be financially and emotionally devastating to the loved ones, who may feel surprised and betrayed by this misconduct.

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 loved ones chooses the a caretaker as the power of attorney.

How can the caretaker abuse a power of attorney

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

  • Opening joint bank accounts and naming the caretaker as a beneficiary or co-owner with right of survivorship
  • Purchasing life insurance policies with your loved one as insured and naming the caretaker as a beneficiary or changing existing life insurance account beneficiaries
  • Purchasing real estate with your loved one’s money and transferring title of real estate for the caretaker’s benefit
  • Unauthorized gifting to the caretaker
  • Outright theft by the caretaker of the loved one’s property
  • Unauthorized use by the caretaker of credit cards or establishing credit under the loved one’s name

What can I do if I suspect my loved one’s caretaker is abusing a power of attorney?

Ask the caretaker to return the money or property

This may or may not work, but you can always just ask the caretaker 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 loved one to revoke the power of attorney

The simples thing to do would be to explain to your loved one that they are possibly being defrauded by the caretaker, 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 the caretaker is no longer in any power of authority over any of your loved one’s assets.

Bring a lawsuit against the caretaker

Your loved one can contest the power of attorney in court by suing the caretaker 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 loved one. 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 loved one can revoke the power of attorney that the caretaker is abusing and can sue the caretaker 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 the caretaker, thinking that they don’t want them to get into any kind of trouble with the law.

Place a guardianship over your loved one

One option may be to obtain guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the caretaker 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 loved one and ultimately to benefit the estate and beneficiaries.

There are some downsides to the guardianship proceeding, the most common downside being that your loved one 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 the caretaker go to jail for it?

A caretaker abusing a power of attorney can leave your loved one’s estate and their heirs without any assets or inheritance. The caretaker’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 the caretaker will face jail time, as your loved one is unlikely to press charges against their relative. 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 the caretaker is abusing a power of attorney

You can prove that the caretaker is abusing a power of attorney by looking at your loved one’s financial statements and property records. If the caretaker is indeed abusing the power of attorney, then you will see transfers of money or property to the caretaker or unexplained cash withdrawals. You can ask your loved one 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 is in effect until

  • The person who made it dies
  • It expires (if it has an expiration date)
  • It’s revoked by your loved one, who can revoke it by giving written notice to the caretaker
  • 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.

If you are having issues with the caretaker who is abusing power of attorney or being unjustly accused of such, we at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

A Cousin Abusing a Power of Attorney – what can you do about it

cousin abusing a power of attorney

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

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

  • have your loved one revoke the power of attorney
  • have your cousin 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 loved one

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

Relatives sometimes abuse their loved ones’ powers of attorney, when the elderly loved one needs elder care and are physically disabled or mentally incapacitated. A financially abusive cousin could leave a your loved one’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 loved ones choose the wrong cousin as the power of attorney. A person should carefully consider which one of their relatives (if any) should act as their power of attorney. If someone does decide to name a relative as a power of attorney, they should pick the relative who possess traits of trust, honor and integrity and who has earned the trust of all the other relatives.

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

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

Ask your cousin to return the money or property

This may or may not work, but you can always just ask your cousin 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 loved one to revoke the power of attorney

The simples thing to do would be to explain to your loved one that they are possibly being defrauded by your cousin, 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 cousin is no longer in any power of authority over any of your loved one’s assets.

Bring a lawsuit against your cousin

Your loved one can contest the power of attorney in court by suing your cousin 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 loved one. 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 loved one can revoke the power of attorney that your cousin is abusing and can sue the cousin 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 cousin, thinking that they don’t want them to get into any kind of trouble with the law.

Place a guardianship over your loved one

One option may be to obtain guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the cousin 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 loved one and ultimately to benefit the estate and beneficiaries.

There are some downsides to the guardianship proceeding, the most common downside being that your loved one 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 cousin go to jail for it?

A cousin abusing a power of attorney can leave your loved one’s estate and their heirs without any assets or inheritance. Your cousin’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 cousin will face jail time, as your loved one is unlikely to press charges against their relative. 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 cousin is abusing a power of attorney

You can prove that your cousin is abusing a power of attorney by looking at your loved one’s financial statements and property records. If your cousin is indeed abusing the power of attorney, then you will see transfers of money or property to your cousin or unexplained cash withdrawals. You can ask your loved one 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 cousin to abuse it

If your loved one gave your cousin 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 cousin the authority to make legal and financial decisions for your loved one 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 cousin, 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 cousin 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 loved one, who can revoke it by giving written notice to your cousin
  • 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 loved one 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 attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

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

sister abusing a power of attorney

When your sister 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 sister is abusing a power of attorney, your goals are to

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

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 sister 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 sisters.

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 sister as a beneficiary
  • Purchasing life insurance policies and naming the sister 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 sister
  • 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 sister is abusing a power of attorney?

Ask your sister to return the money or property

This may or may not work, but you can always just ask your sister 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 sister, 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 sister is no longer in any power of authority over any of your parent’s assets.

Bring a lawsuit against your sister

Your parent can contest the power of attorney in court by suing your sister 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 sister is abusing and can sue the sister 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 sister, 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 sister 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 sister go to jail for it?

A sister abusing a power of attorney can leave your parent’s estate and their heirs without any assets or inheritance. Your sister’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 sister 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 sister is abusing a power of attorney

You can prove that your sister is abusing a power of attorney by looking at your parent’s financial statements and property records. If your sister is indeed abusing the power of attorney, then you will see transfers of money or property to your sister 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 sister to abuse it

If your parent gave your sister 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 sister 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
  • It is successfully contested and is revoked by the court

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 sister, 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 sister 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 sister

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 attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.

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

brother abusing a power of attorney

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 attorneyalbertgoodwin@gmail.com or call us at 718-509-9774.