My brother has abused his POA by taking Mama's money for personal use. I intend to force him to give me POA. I believe he will agree. What do I need in order to be recognized as the new POA? He took $45,000. Will I be negligent if I do not take this to law enforcement after I become POA?
Divorce / Separation Lawyer
You have a complex problem that REQUIRES a lawyer. The lawyer needs to review the POA and the facts, determine if civil (or criminal) court is needed, and otherwise assist. A POA with two living people named is problematic as it likely has no mechanism for you to take over without the other person's consent. Time matters here, so see a lawyer immediately.
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I am terribly sorry to hear about your situation. Unfortunately, financial abuse under a power of attorney seems to be a not-too-uncommon problem.
Generally speaking, your brother can relinquish his role as an agent under the power of attorney by stating that he is unable or unwilling to act as an agent under the power of attorney. Check to see what requirements are set forth in the power of attorney. I would have him sign a letter and send a copy of the letter to the attorney who drafted the POA and to any banks or other organizations that may have accepted the POA.
You may want to speak with an elder law attorney about how you want to handle your brother's actions. I don't often see sibling actually report sibling to the police in this matter, though pressing criminal charges is certainly appropriate. Filing a civil action against your brother to recover the money may also be appropriate, though the reality is that the money is probably gone. If your mother is going to try to qualify for Nursing Home Medicaid within the next five years, you are probably going to have to take some sort of action to recoup the moneys or Medicaid may view it as your mother gifting money to her son, which will delay the receipt of her benefits. Again, an elder law attorney can help guide your through the difficult decisions that have to be made. The attorney can also assist you in taking your brother to court if he refuses to step down as an agent under the POA. To find an attorney in your area, check out the National Academy of Elder Law Attorneys (www.naela.org).
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The language of the POA should provide a mechanism for his withdrawal, and it is likely that he do son voluntarily. As to the funds he took, you will need to seek legal advice as to whether or not you should, can, or even must take some kind of action no only to protect your mother's property, which will be your obligation, but to cover yourself from liability in the future, which is in your own best interest.
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