My Brother or Sister Is Taking My Mother or Father’s Money in New York City

It is an unfortunate reality that there are some relatives in New York who will use their relationship with an elderly person to their own gain.  While elder abuse can take many forms, financial abuse can be one way that a trusted loved one of an elderly person can happen without them even realizing that it is going on.  If you believe that you have an elderly loved one that is the subject of financial abuse, the first call you should make is to a New York lawyer with experience in dealing with elder abuse and guardianship.

Often, financial abuse is not as obvious to family members as physical abuse.  Financial abuse is still a serious matter, however, and there are clues to look for to see if it is happening to your loved one.  If the elderly person in your life has handed over control of his or her financial care to a family member in the form of a power of attorney, for example, there could be some major red flags to look for to see if there is financial abuse going on.  One thing to look for is whether or not your loved one is still receiving the bank statements and know what is going on with his or her account.  If it appears that you loved one does not know what is going on, while at the same time money or valuables are starting to go missing, it is time to take action.

The surest way to fight financial abuse is to petition to be your loved one’s guardian.  While no one wants to think about their mother, father or other loved one not being able to make decisions for themselves, this can be the best way to secure that loved one’s finances.  Becoming a guardian is the best way to stop someone who is taking advantage of a loved one financially, even if they are using a power of attorney.

There are two main kinds of guardianship.  One is guardianship over a person’s financial affairs, such as paying bills or managing financial accounts.  Another type of guardianship would be over the person.  This type of guardianship would mean the petitioner would be getting the ability to make health care decisions for the person who is subject to the guardianship. The courts aim towards giving a person the ability to make decisions on their own as much as possible.  For example, this can mean that if your parent is not able to handle his or her financial affairs but still can make their own medical decisions, only decisions about financial issues can be made.

Through petitioning for guardianship with the assistance of a New York attorney, you can help your parent gain control over his or her money.  The first step is to have an emergency guardian appointed so that accounts can be frozen.  This will keep your brother or sister from gaining access to your loved one’s money while the guardianship proceedings are going on.  Once a guardian is appointed, the accounts can be under the guardian’s control, meaning that it would not be possible for a financial abuser to take any more money.  You can also petition for a full accounting if the suspected abuser has been given power of attorney over your relative.  This way, there is a better chance that you will find out where your loved one stands financially.

If suspect that your brother or sister is taking money from your mother or father, speak to attorney Albert Goodwin. Call (212) 233-1233.

Recognizing Financial Elder Abuse

Financial elder abuse takes many forms. The warning signs include:

• Sudden changes in bank account activity, including large withdrawals or unfamiliar transfers.
• New names added to bank accounts, deeds, or other ownership documents.
• Bills going unpaid even though the elderly person has resources.
• Missing financial statements, mail being redirected, or family members controlling all communication with the elderly person.
• The elderly person seeming confused about their finances or unable to access their own money.
• Sudden changes to wills, trusts, or powers of attorney favoring one family member.
• Expensive new purchases by the family member who has access to the elderly person's finances.
• The elderly person being isolated from other family members and friends.
• Statements like "I need to take care of mom and dad financially" coupled with unexplained transfers.

The earlier these signs are recognized, the more can be done. Money that has been transferred away can be very difficult to recover; preventing further transfers is generally more effective than recovering what has been taken.

Article 81 Guardianship Proceedings

The legal vehicle for protecting an incapacitated elderly person in New York is an Article 81 guardianship proceeding under the Mental Hygiene Law. The proceeding determines whether the person is incapacitated and, if so, what protective arrangements are needed.

The proceeding involves:

• Filing a petition identifying the person needing protection (the alleged incapacitated person, or "AIP") and the protections sought.
• Appointment of a court evaluator who investigates the AIP's situation and reports to the court.
• Notice and hearing where the AIP has the right to counsel and to participate.
• Court determination of incapacity and appropriate protections.
• Ongoing supervision of the guardian by the court.

The court tailors the guardianship to the AIP's actual needs. Powers granted to the guardian are limited to those necessary to address the AIP's incapacities. The goal is to protect the AIP while preserving as much autonomy as possible.

Emergency Temporary Guardianship

When there is an immediate risk of harm — ongoing financial exploitation, for example — the court can appoint an emergency temporary guardian. Mental Hygiene Law § 81.23 allows emergency appointments without the full proceeding when:

• The AIP is in danger of immediate harm.
• The harm cannot be prevented by less restrictive means.
• Waiting for the full proceeding would cause irreparable harm.

The emergency guardian's powers are limited to addressing the immediate threat. Common emergency powers include:

• Freezing bank accounts to prevent further withdrawals.
• Securing the AIP's residence.
• Restricting visitor access if certain visitors pose a danger.
• Reviewing and stopping pending transactions.
• Securing other assets at risk.

The emergency appointment runs until the full proceeding can be conducted, typically within 30 days.

Powers of Attorney Issues

Many financial elder abuse cases involve abuse of a power of attorney. The agent who is supposed to be helping the principal uses the powers for personal benefit instead. New York General Obligations Law has been strengthened to address POA abuse:

• The "Statutory Major Gifts Rider" requires specific authorization for the agent to make gifts to themselves.
• The agent has a fiduciary duty to act in the principal's best interests.
• The agent must keep records of all transactions.
• The principal can revoke the POA at any time while competent.
• Successor agents or guardians can demand an accounting from the agent.
• The court can compel the agent to provide an accounting and surcharge for misconduct.

If a guardian is appointed, the guardian can revoke the existing POA and demand a full accounting from the prior agent. Any unauthorized gifts or self-dealing transactions can be reversed or surcharged.

Recovering Misappropriated Funds

Recovering money that has been misappropriated involves several potential approaches:

• Civil action for conversion or breach of fiduciary duty. Direct lawsuit against the wrongdoer for damages.
• Constructive trust. If the wrongdoer used the funds to acquire specific assets, the court can impose a constructive trust on those assets.
• Tracing. Following the funds through various accounts and transactions to identify their current location.
• Voiding transfers. Setting aside transfers made under undue influence or while the elderly person lacked capacity.
• Criminal prosecution. In cases of clear fraud or theft, criminal charges may be available; restitution can be ordered as part of any criminal disposition.

Recovery is often partial. Funds spent on consumables (vacations, food, services) are typically unrecoverable. Funds invested in identifiable assets can sometimes be traced and recovered.

Protective Orders

The court can issue protective orders restricting the wrongdoing family member's contact with the elderly person. Orders can include:

• No contact directives.
• Distance restrictions.
• Restrictions on financial transactions.
• Mandatory return of property already taken.
• Notification requirements for any future contact.

Violations of protective orders can result in contempt proceedings and additional sanctions. The orders provide a legal framework for keeping the wrongdoer away from continuing to exploit the elderly person.

Reporting to Adult Protective Services

Financial elder abuse should be reported to Adult Protective Services (APS) in addition to pursuing legal remedies. APS can:

• Investigate the situation.
• Connect the elderly person with services and support.
• Refer to law enforcement for criminal investigation if appropriate.
• Document the abuse for later use in legal proceedings.
• Provide ongoing monitoring if needed.

The APS investigation does not replace civil legal proceedings, but it can support them. APS records and findings often become important evidence in guardianship and recovery actions.

Considerations for the Elderly Person

Throughout the process, the elderly person's well-being and dignity should be at the center. They may be conflicted — concerned about their finances but reluctant to take action against a child or sibling. Sensitive handling matters:

• Involve the elderly person in decisions to the extent possible.
• Listen to their concerns and preferences.
• Provide emotional support along with legal action.
• Recognize that family relationships will be permanently affected by these proceedings.
• Consider counseling or other support resources for the elderly person.

Legal remedies are important, but the underlying goal is preserving the elderly person's quality of life and dignity. The right approach balances protection with respect for the individual at the center of the situation.