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.
If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at email@example.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.
Elder Law Attorney
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).
Unless you came into my office, signed a contract and wrote me a check, I am not your attorney, and you are not my client. This is not intended as legal advice and should only be used for informational purposes only. You should never believe any information that you receive on the internet, especially information that is probably being provided in the late evening hours when I should be sleeping.
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.
The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP firstname.lastname@example.org 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation