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Can I revoke Durable POA if I can prove that my brother used my dad's funds to pay off his own bills instead of my dad's?

Conrath, WI |

My brother has DPOA over my father in a nursing home and he lives out of state in IL. My dad and I live here in WI and I live down the street from the nursing home and can visit him all the time. My brother lives out of state, only came up here when he found out my dad had a stroke and went into the hospital and then the nursing home. My father is on SSI and Medicaid and since he has been in the nursing home for over a year, the nursing home put a lien on my dad's house. My brother has locked me out of the house and property and had complete control over his checkbook and possessions. I have personally seen checks that were written out to my brother to pay his own bills, and yet he has not paid any of my dad's bills, such as property tax or anything since he became DPOA. Is this legal?

Attorney Answers 3

Posted

This is a follow-up to your other question. I do not believe you are going to be able to resolve this on your own. I think that you need to retain a probate attorney and discuss obtaining guardianship and conservatorship over your father. Your brother will likely contest your appointment, but if you can prove your allegations of financial wrong-doing, (which appear to breach your brother's fiduciary duties to your father), then the court may well land on your side.

James Frederick

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Posted

There may be wrongdoing here. You may be completely right and your brother may be completely wrong. You could seek a guardianship if your father is incompetent and possibly get the court to void the DPOA your brother has.
But, it might be best to ignore your brother if you can. You have said your father is on SSI and Medicaid. That means your father has no money. You cannot be in those programs unless you have basically nothing. The state will have a lien on the home if/when he dies. It might not be worth the money or trouble to you or your father to go after your brother or to seek a guardianship. There is basically nothing to fight over. Think seriously about getting into a legal power struggle during your father's last days.
Although I am an attorney, some cases do not have a good legal solution. Take advantage of being close to your father and get some stories out of him. Studies show that of all the things parents leave behind, the stories are what people treasure more than money or possessions.
Best of luck to you.

I am not your lawyer. Any advice given through the Avvo site is for hypothetical purposes only, and does not create an attorney-client relationship. The advice is without warranty and you should not rely on this advice without consulting a Wisconsin attorney directly who knows the particulars of your case.

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James P. Frederick

James P. Frederick

Posted

Very good advice, as usual.

Asker

Posted

I have all the stories and pictures of my dad's life and love him very much. The problem is, my father owned 80 acres next to his house with 10 acres, and after he divorced his wife, he did not want her to get any of his property. Before she could do this, my dad panicked and put the 80 acres with pole shed filled with his antique business and other valuables in my brothers name by signing it over to him and just adding Jr. to the courthouse papers, so his ex wouldn't get it. My father always said it was just to save it for us kids (my brother and me). Since I knew nothing about this transaction and my father had made out a will saying 50/50 share on all his belongings and property, my brother turned around and put the land into a corporation so no one could take it from him as long as he paid the taxes. I would have paid half the taxes if I knew this at the time, but my father with only an 8th grade education and my brother with a Master's Degree, figured he'd tell my dad how to get around the laws. My brother won't let me on either property since he got DPOA and he is Executor of the will when he dies. My dad had many antiques and primitive antiques in his house, garage and yard, and when he got the DPOA, he moved everything from my dad's to the property next door and says it's all his now. I am very upset! I helped my dad for 11 yrs up here by cleaning his house, shoveling snow, mowing lawn and rototilling garden, to name a few things, my brother never came up here until he thought he was gonna die, and then he hurried up and got POA and went to work taking everything and selling it, changing locks on doors, putting up gates in front of driveways and No trespassing signs. When my dad does die, I will end of getting nothing and I am broke and have to move right now and don't have any money and I'm disabled. He is rich, has cars, houses and luxuries, and to deny me everything is the most disrespectible thing to do to his own sister. I asked a lawyer and he said if he misrepresented funds, I should call the cops. Is this the right thing to do?

Posted

Both of the other attorneys' advice should be accepted; a court might not only appoint someone other than your brother as guardian and revoke the brother's POA authority, but might find your brother financially obligated.

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