My Brother or Sister Is Taking My Living Parent's Money: What to Do in New York

By Albert Goodwin, Esq., New York estate and guardianship litigation attorney. Last updated: June 2024.

You suspect that your brother or sister is moving money out of your mother's or father's accounts while your parent is still alive. Maybe transfers are showing up that nobody can explain, your sibling has been added to an account, or your parent suddenly cannot pay for things they could always afford. This page is a direct, action-focused guide to stopping a sibling from draining a living parent's money in New York.

The single most important question — the one that determines which remedies are available to you — is this: does your parent still have mental capacity to manage their own affairs? The answer changes everything. Guardianship is frequently presented as the fix-all, but it is the wrong tool when a parent still has capacity. Below we split the roadmap by capacity.

First 72 Hours: Immediate Steps Regardless of Capacity

• Document what you already know. Pull together every bank statement, transfer record, check image, deed, beneficiary change, and text message you can lawfully obtain. Note dates, amounts, and account numbers. This becomes your evidence.
• Report to the bank's fraud department. New York banks are required to monitor for elder financial exploitation, and Banking Law gives institutions authority to delay or refuse suspicious transactions on accounts of customers 65 and older. A timely report can trigger a transaction hold.
• Make an Adult Protective Services (APS) report. Every New York county has an APS unit (in NYC it operates through the Human Resources Administration). APS can open an investigation, which creates a contemporaneous record.
• Do not move money or confront the sibling before you have a plan. Tipping off a wrongdoer often accelerates the very transfers you are trying to stop.

If Your Parent Still Has Capacity: Guardianship Is NOT the Answer

If your mother or father is still mentally competent, a court will not — and should not — strip them of control through an Article 81 guardianship. A competent adult is legally entitled to manage their own money, even to make choices their children disagree with. The remedies here put the parent back in control:

• Revoke the power of attorney. A competent principal can revoke a POA at any time under General Obligations Law § 5-1511. The revocation should be in writing, signed, and delivered to the agent and to every bank and institution that holds the prior POA on file. New York's 2021 statutory POA reforms (effective June 13, 2021) changed the form and execution requirements — make sure any new POA complies.
• Add account controls. Switch to read-only online access for the parent, require dual signatures, set up transaction alerts to the parent's own phone or email, and remove the sibling as a joint owner or authorized user if the parent wishes.
• Demand an informal accounting from the agent. Under GOL § 5-1505, an agent under a POA has a fiduciary duty to keep records and must provide them when requested by the principal. Learn more on our accountings page.
• Report the bank fraud and file a police report if money was taken without authorization. Larceny against a vulnerable elderly person can be charged under the Penal Law.
• Update the estate plan. If the sibling exploited a stale POA or pressured changes to a will or trust, the competent parent can revise those documents with their own counsel.

The legal claims that flow from POA misuse — breach of fiduciary duty and conversion — are explained on our pages about breach of fiduciary duty and abuse of a power of attorney.

If Your Parent Lacks Capacity: Article 81 Guardianship

When your parent can no longer understand or manage their finances and is being exploited, an Article 81 guardianship under the Mental Hygiene Law is the protective tool. It is a court proceeding to determine whether your parent is an "incapacitated person" and, if so, to appoint a guardian of the property (and/or of the person) with carefully tailored powers.

The proceeding includes a petition naming the alleged incapacitated person (the "AIP"), appointment of a court evaluator who investigates and reports, the AIP's right to counsel, a hearing, and ongoing court supervision of any guardian appointed. The court grants only the powers actually needed — the statute requires the "least restrictive" arrangement consistent with the AIP's needs. For the full mechanics, see our overview of protective planning and contact us for guardianship-specific guidance.

Emergency Relief to Freeze Accounts: MHL § 81.23

When money is actively leaving the accounts, you do not have to wait weeks for a full hearing. Mental Hygiene Law § 81.23 allows the court to appoint a temporary guardian on an emergency basis when:

• The AIP is likely to suffer immediate and irreparable harm;
• No other person appears authorized and willing to act; and
• Less restrictive alternatives are insufficient.

An emergency temporary guardian can be empowered to freeze bank accounts, stop pending transfers, secure the residence, and — critically — revoke the abusive POA and demand a full accounting from the prior agent. The temporary appointment bridges the gap until the main hearing, usually within roughly 30 days.

How Guardianship and Surrogate's Court Recovery Tools Intersect

Stopping the bleeding is one step; getting the money back is another. A guardian of the property has standing to pursue recovery of misappropriated funds. Where the parent has since died, recovery shifts to the estate's fiduciary using Surrogate's Court procedures:

• SCPA 2103 and 2104 discovery and turnover proceedings. These let a fiduciary compel a person believed to be holding estate property to disclose what they have and turn it over. See our discovery and turnover proceeding page.
• Conversion claims. A direct claim that the sibling wrongfully exercised dominion over your parent's money. In New York the statute of limitations for conversion is generally three years (CPLR 214), running from the wrongful act — which is why prompt action matters.
• Breach of fiduciary duty. Where the sibling acted as POA agent, joint owner, or de facto fiduciary. The limitations period varies (often three or six years depending on the relief sought).
• Constructive trust and tracing. If your sibling used the money to buy identifiable property — a car, a house, an investment account — the court can impose a constructive trust and order it returned.
• Surcharge. A POA agent or guardian who self-dealt can be surcharged personally for the loss.

For the specific situation of a sibling who has taken funds and is concealing them, see our related discussion at my brother took and is hiding my father's money.

Warning Signs a Sibling Is Draining a Living Parent's Accounts

• Unexplained large withdrawals, transfers, or new recurring payments.
• The sibling newly added as a joint owner or authorized user on accounts or a deed.
• Bills going unpaid even though your parent has resources.
• Statements being redirected, online access changed, or mail intercepted.
• Your parent isolated from other family and unable to access their own money.
• Sudden, lawyer-less changes to a will, trust, beneficiary designation, or POA favoring the one sibling with access.
• New, out-of-character purchases by the sibling who controls the finances.

Money already spent on consumables (travel, dining, services) is often unrecoverable, so the priority is freezing further transfers and tracing identifiable assets quickly.

Frequently Asked Questions

Can I freeze my parent's bank account myself?

Not unilaterally. If your parent has capacity, the account is theirs to control — but you can report suspected exploitation to the bank's fraud unit and to APS, which can prompt a hold. If your parent lacks capacity, an emergency temporary guardian appointed under MHL § 81.23 can obtain a court-ordered freeze.

Can I sue my sibling for taking my parent's money?

While your parent is alive and competent, the claim belongs to your parent, not to you. You can support them in bringing a conversion or breach-of-fiduciary-duty action. If your parent lacks capacity, a court-appointed guardian of the property can sue on their behalf. After death, the estate's executor or administrator pursues recovery, often through a Surrogate's Court turnover proceeding.

What if Mom signed a power of attorney giving my sibling control?

A POA is not a license to self-deal. The agent owes a fiduciary duty under GOL § 5-1505 and must keep records and account for transactions. If Mom still has capacity, she can revoke the POA at any time (GOL § 5-1511). If she does not, a guardian can revoke it and demand a full accounting, and any unauthorized gifts or self-dealing can be reversed or surcharged.

Is taking a parent's money a crime in New York?

It can be. Misappropriating a vulnerable elderly person's funds may be charged as larceny under the Penal Law, and restitution can be ordered. A criminal case and a civil recovery action can proceed in parallel; an APS report can prompt a referral to law enforcement.

How long do I have to act?

Sooner is far better. The conversion statute of limitations is generally three years from the wrongful act, and assets become harder to trace over time. Emergency guardianship exists precisely because waiting can cause irreparable loss.

Speak With a New York Guardianship and Estate Litigation Attorney

If you believe your brother or sister is taking money from your living mother or father, the right move depends on your parent's capacity and how fast the money is moving. Attorney Albert Goodwin handles Article 81 guardianship, emergency freezes, POA disputes, and recovery proceedings throughout New York City, Long Island, and Westchester. Call (212) 233-1233 to discuss your situation.

This page is general legal information about New York law and is not legal advice. Statutes and procedures change; consult an attorney about your specific facts.