Mom wants to move to a home care facility in her home town, but her POA will not release her funds. What can we do?

1 answer | Last updated: Sep 17, 2016
Loriherrling asked...

four brothers in family 1 is the poa and wants to invest monies for future personal gain mom has funds to pay the extra and will be the only time here funds are used.2 boys want the money spend on mom 2 want a big fat inheritance. what can be done


Expert Answers

I will give you the same answer I just gave to another Caring,com person troubled by a possible abuse of a POA.

Sadly, I have received numerous questions like yours from Caring.com folks over the past few years. I am not at all an expert on elder law abuse, and I am not experienced in what can be done when possible POA abuse is suspected. You specifically want to know if your brother, who has POA from your mother, has a responsibility to spend your mother's money in her best interest. Morally, definitely yes. But legally that's hard to establish. POAs"”technically called "durable POAs" because they remain effective even if/when the principal (here, your mother) becomes mentally incompetent"”are a relatively new legal device. I think that there is not a substantial body of law and legal decisions regarding what can be done if an abuse of a POA is suspected.

Legally, the person who hold the POA is called an "agent" of the principal. As agent is a "fiduciary" of and for the principal, which means that the agent must act in the highest good faith. All this sounds good, but then what is you suspect the agent is not acting in good faith? The only remedy I know is to file a lawsuit, alleging that the agent has abused and violated his fiduciary duties. Lawsuits are expensive; lawyers are expensive. Perhaps even worse, proving an abuse of fiduciary duties will not be easy. It will cost money and time to take the agent's deposition, subpoena his records and try to establish facts that show abuse.

One possibility is to negotiate with your brother, suggesting that you do not want to file a lawsuit but you are aware that a lawsuit is a possible remedy. Another possibility is to talk to an elder-law attorney and see what, if anything, she or he can recommend, aside from a lawsuit.

I wish I could give you more helpful and hopeful advice.