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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

  1. Best answer

    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

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

  2. 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.

  3. 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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