My brother (POA) took my fathers life insurance check and signed up for a POD acct and put this money in it. He filled out the paperwork, told me and my mother that it was a savings acct. He had her sign it while she was heavily medicated for pain. There was no notary, and no one was allowed to see the paperwork. He took it home with him. He also filed her taxes and had the money deposited into the POD acct, as well as wrote a $5,000 check out of her checkbook and put it in the POD acct. During all of this time, my mother thought it was a savings acct. He listed himself as the beneficiary on the account.
Estate Planning Attorney
It sounds like you need to speak with an attorney about this. When an agent is acting under a Power of Attorney the agent is a fiduciary, meaning they have a duty to the person on whose behalf they are acting. Your brother is responsible to act in your mother's best interest, carrying out her wishes rather than his own.
Your brother's exact rights and responsibilities are determined by state law and the terms of the POA itself. As to his ability to name beneficiaries on accounts in the event of your mother's death, the POA may give him that power, or it may not. That's where having an attorney review the documents, state law, and your brother's actions is key.
If your brother is doing what HE wants with your mother's money, rather than what SHE wants, now is the time to act, before any irreversible decisions are made.
Estate Planning Attorney
Giving the power of attorney to your brother does not rob your mother of her power to take control of that account. Close the account and set up a new account in a new bank. She should consider terminating the power of attorney. He may have done other things that are not to her liking. Get an attorney
In Wisconsin, the actions you describe are a breach of his fiduciary duty and may even be fraud. You need an attorney to review the power of attorney and all of the facts of the situation to determine if these or other actions should be taken.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. You are strongly advised to contact an attorney to obtain legal advice before taking or refraining from taking any action with respect to the above.
Let me be real clear here-your brother can not be trusted. His behavior may be fraudulent and he has clearly breached his fiduciary duty. You need to IMMEDIATELY retain counsel to help you in this matter.
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Mr. Fromm is licensed to practice law in PA with offices in Philadelphia and Montgomery Counties. He can be reached at 215-735-2336 or at the email address listed below. He has received a 9.7 rating from AVVO and recently was featured as a 5Star Wealth Manager in the Philadelphia Magazine, November 2009 issue on page 123.
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