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Power of attorney, misuse of funds

Hollywood, MD |

My mother is currently living with me here in MD. My sister invoked her POA, which was setup 17 months ago after the death of my father. My sister has cut my mother off from all of her money, (monthly social security, pension, house in PA, furnishings etc.) claiming me and my family are taking advantage of her and want her money. My mother suffers with stage 1 Alzheimers. My sister has been using my mother's funds for her own use since my father died in 2006. My sister resides in the family home. My sister does not accept any phone calls from us and has basically abandoned my mother here. My eldest sister and I have sent her a certified letter requesting an accounting of all of the spending since she took over the finances. We suspect either identity fraud and/or commingling of funds. She has not responded to us at all. What if anything can we do about this? Can we get an attorney and pay from my mother's estate?

My mother has been in my care since September but her legal residence is in Pennsylvania. She tried changing the POA but it was null and void since my sister had her deemed incompetent after a meeting in Aug with a psychologist. My sister has continually made bad decisions on behalf of my mother. Most recently canceling an Altzheimer policy which my father had on both he and my mother for years, then attempted to get a $300K life insurance policy on my mother naming her as the beneficiary.

I have read the above account of a delimma that this individual is experiencing with respect to a family member abusing her role as Power of Attorney. It is a carbon copy of my present situation even to the detail of a Mother with Alzheimer's disease. My sister is abusing her role and I am at a loss as what to do.........if I report it I can't imagine the sorrow I would feel if indeed police action was taken. My lawyer has strongly recommended that I not receive any money from my sister when the sale of the family home takes place in a week's time. My sister has already taken from the cookie jar and just returned home from a holiday in Spain. She has been in communication with my brother and has involved him in the use of money from the estate prematurely------he is off to Flordia to buy a winter retreat!

Attorney Answers 2


This is a mess for you to deal with. You have my sympathies (which, by the way, are not given lightly). People granted a POA have fiduciary responsibilities toward the grantor. Usually the POA itself spells out some of those duties but the State law can at least help.

In this case you have an added complication. If your mother is not mentally competent to cancel the POA or create a new one then the next step is twofold: a guardianship to create your legal authority to act on behalf of your mother and a temporary restraining order to stop your sister. Whether an attorney will act on your behalf and wait until the end of the proceeding so that you can legally use your mother's money depends on the attorney. You may have to at least pay for the filing fees.

Your sister is allowed to create a life insurance policy on your mother with her as the beneficiary is she has a beneficial interest in your mother's life.

Competency can be a fleeting thing. Someone with Altzheimer's can be competent enough to create a POA or a will. As long as she is competent at the time of the creation of the document whether she was in August or a week later is irrelevant. Have two independent witnesses testify to her signature and competency etc at the time of signing.

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YOU have many questions here, and the answers to each depend on the full facts of the situation -- which cannot be determined just from what you wrote. You really need to really need to retain an attorney to investigate the facts with you and make recommendations. A number for questions are raised by your post. If your sister who has the POA had your mother declared incompetent, she likely also was then appointed the legal guardian of your mother. That’s probably why the POA is now null. You should be able to find out if a guardianship proceeding was opened and decided in PA or MD by talking to court clerks in the courts in those jurisdictions. In MD, you can go online to the MD Judiciary web site and click on “search court records”, enter your mother’s name, and see if a proceeding has been filed, what the result was, and who was named guardian. You say the bad sister has “cut your mother off” from, among other things, her own house? How is that? Has she forbidden your mother to live in her own house? Or does she actually want (or says she wants) your mother to come back and live there in “bad” sister’s care in PA? Did your mother already suffer from Alzheimers 17 months ago when she selected your “bad” sister for POA? How do you know about the misuse of your mother’s funds? Take whatever evidence you have of that misuse, and see an attorney about filing a suit in the appropriate jurisdiction, to terminate what appears to be your “bad” sister’s guardianship and having a new guardian named. Also, find out if your mother has a Will. It sounds like your dad would have taken care that they both had Wills. Find the original Will and put it in a safe place if you can. If you are concerned that “bad” sister has taken, hidden, or destroyed the Will, get help from your lawyer about that too.

Anne LoPiano

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