Could my brother swindle Mother's money?

A fellow caregiver asked...

My brother is the executor of our mother's finances. If he were to get mad, could he cause damage, ruin, or swindle her money away without her knowledge?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

 There are a couple of pesky legal terms to clear up here—and perhaps that will help ease your mind.

An executor is the person named in a will to round up, manage, and distribute the willmaker’s assets after he or she dies as the will directs. The executor has no right or power to take any action with the owner’s finances while he or she is alive.

But if your brother was the agent named to act in your mother’s power of attorney document, then he has the legal duty to act in her best interests while she is still alive—either immediately or when she lacks the legal capacity to act for herself, depending on the wording of the particular document.

The fact that you fear your brother may swindle your mom speaks loudly—and you may be in the best position down the road if you act now to try to prevent wrongdoing. Your first step will be to get specific about your concerns about what makes you suspect something might go wrong. Then try to have an honest talk with your brother. Don’t be accusatory; simply emphasize your interest in knowing what is going on — and let him know you are available to help or that you support the idea of hiring someone else to help if that seems best. In a surprising number of cases, that show of care and concern clears up the matter. And it can be particularly helpful in a case such as yours, when you’re dealing with someone who can have real temper flare-ups.

If that step is not possible or successful, you might ask a court to periodically review your brother’s actions to make sure they’re on the up and up—and possibly to require an accounting so that the finances can be more directly monitored.