Does the power of attorney assigned by the bank have any legal standing?

1 answer | Last updated: Sep 14, 2017
A fellow caregiver asked...

My mother is in the later stages of Alzheimers and we are currently trying to get her into an assisted living facility. Around the end of last year my mother took my elder sister to her bank thinking she was signing a power of attorney so that my sister could take care of moms finances. My nephew had sent my sister the wrong form so it could not be used at that time. The bank held onto the forms and when my mother was pronounced incapacitated a couple of months ago, the bank allow my sister to bring the paper from the doctor to the bank and let her sign giving herself Durable Power of Attorney. I was okay with this until recently when I found $800 dollars unaccounted for when I viewed a bank statement. My sister sent the money to two other out of town sisters so they could fly home to help with my mothers care. Only one sister came and the other is still holding the money. My mother would never have approved of that much money to fly them both in. My question is does the bank POA have legal standing. After all, it was put into affect without my mother knowing that the durable power of attorney existed. As soon as she was declared incompetent the bank let my sister sign the forms. Secondly, my sisters were hiding from the other siblings that they had used her money in such a manner and who knows if and when she will get it back. The sister with POA seems to view my mothers limited funds as her own. We had agreed that we would both oversea my mothers statements, but now my sister is avoiding the issue and is misusing funds as far as I can tell.

Expert Answers

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.

It's hard to answer the first part of your question"”whether the POA is a legally sound one"”without knowing whether your mother was of sound mind and willingly signed the document at the bank while recognizing the meaning of what she was doing. If it was all a subterfuge meant to dupe your mother, then the POA is likely of no effect.

To challenge it is a bit tough, though. You would have to go to the local court"”usually the superior court"”and produce evidence of your mother's state of mind at the time she signed the document or evidence that she wasn't aware she had signed a POA.

The fact that your sister took the doctor's diagnose to the bank is not in itself a cause for alarm. The usual procedure once a valid POA has been completed and signed is that a doctor, and sometimes two, must declare in writing that the person is no longer able to make his or her own decisions"”and lacks mental capacity. That is simply how many POAs get activated.

As for the issue of whether your sister is misusing the funds, you may all be best served by trying to resolve this on your own"”at least at first. Get all the siblings together in one place"”or at least patched in by phone, and try to have an honest discussion about what's going on. You could couch it by saying that you all have your mother's best interests at heart and want to be sure that things are going smoothly. Since at least a couple of you seem to have access to your mother's bank statements, you could ask the POA sister to write out a simple accounting of how the money is being spent.

If that doesn't help solve the issues of doubt and distrust, you might get the law on your side by going to court"”usually the superior court nearest to where your mother lives"”and asking the judge to demand that your sister who's the POA must file an occasional accounting. It is common, for example, for a court to require an accounting every six months.