What is the penalty for using a Power of Attorney after death of principal?

4 answers | Last updated: Oct 04, 2017
A fellow caregiver asked...

My father had cancer and I stayed with him while on hospice. My brother had power of attorney and at the behest of my dad, wrote each of us a large check. Dad passed a little while later and I went back home and deposited the check, approximately two weeks after check was written. The check was returned as account closed. I found , through months of litigation, that my brother cashed his check then closed the account using his power of attorney five days after dad died. He also wrote close to $50,000 in checks to himself and his family and closed another account out (0ver $20,000) using his power of attorney a week after dad died. He says I am making a mountain out of a mole hill. The DA and local police say this is a civil matter. I hired an attorney, but I am wondering why no one seems to care that he used his POA for self dealing and used it after attending dad's funeral. Would this not be a criminal matter?

Expert Answers

You are absolutely right that what you brother did MIGHT be a criminal offense. That offense might include fraud and theft, as well as violations of your state's specific power of attorney laws. However, there are several things that stand in the way of getting the police or district attorney's office to prosecute or even investigate the matter. First of all, the prosecution would have to prove that your brother intentionally took the money and intended to keep it for himself. That would mean proving not only that he went against your father's wishes (without your father there any longer to say what his wishes were) but that he did so with the specific intent to steal the money, rather than simply as a mistake about what your father wanted and may have told him. All of this is difficult to prove unless there are written instructions from your father clearly indicating what your father's instructions were.

The question of where your father's money should go is also something that usually is handled in probate court, which is a civil proceeding. Also, as your attorney is no doubt working on, there are other, different civil proceedings available to seek the return of the money. In addition to the problems of proving a criminal case against your brother, as mentioned above, the district attorney's office is probably not interested in pursuing a criminal case for three other reasons: (1) Because these civil proceedings are available to you; (2) Because the matter involves a dispute solely among family members; and (3) Because the budgets of police departments and prosecutor offices are severely restricted these days, which often does not allow them to pursue "white collar" criminal matters such as your dispute with your brother.

Still, if your personal attorney develops evidence that clearly indicates that your brother stole this money, he or she might then ask the district attorney's office to open a criminal investigation. If the DA is willing to do so -- even just to look into the matter -- this might bring additional pressure on your brother to pay up what he owes.

Community Answers

A fellow caregiver answered...

Have you contacted your state bar association? Keep calling back if you're not satisfied and tell them what you told us on here and that you can't seem to find a lawyer. That's what I did in Ohio and fortunately at very long last after several months I finally found a good honest lawyer. If you're on federal benefits like Social Security, you should be given the name of a lawyer who works on contingency. As long as you have actual documentation or proof of wrongdoing and other correspondence related to your case, and the lawyer thinks your case is winnable, they'll take your case.

A fellow caregiver answered...

I should mention that POA generally ends when someone dies and there are usually some kind of penalties for exercising those powers after someone dies. There may be some lenience if the POA has no knowledge of the person's death, but if the POA knowingly exercise those powers knowing the person died then there's trouble but definitely be able to prove it. What you'll need to do is open an estate for your relative but I would get the help of a lawyer if I were you. Let the lawyer handle this for you and you rest easy. If it's a complicated case, it may take a little longer than it would for a normal case because each situation is a little bit different. If your case involves fraud and your relative was permanently mentally incapacitated and had no guardian like when patients with dementia and Alzheimer's do, then you may be looking at a bit of a complicated case and the fraudulent POA may be facing some trouble. Your best bet is to get a hold of Google Street view and monitor the address you'll need to use to open the estate because it was needed in my own case when I opened one for my dad. Right after the process started, the fraudsters property suddenly went up for sale, I spotted it by accident on Google Street view when I got curious and virtually visited my old neighborhood where the address happens to be. This is how I spotted the for sale sign in the corner of the empty lot. I immediately tried to contact my lawyer over Easter weekend to alert him but to no avail. When I contacted him the next business day, he was unaware of the property being up for sale but I noticed when I check in now and then the sign is still there so apparently the court must've done something to stop the sale until this is settled.

The one thing you must remember is that lawyers are so busy with big caseloads so they may not be able to catch everything immediately and somethings may happen before they actually catch suspicious activity. This is why I strongly encourage you to get Google Street view because you can stop the sale by contacting your lawyer, Because then your lawyer can act on your behalf. Had it not been for Google Street view, I might have never known the property was up for sale right after our case opened. One thing you must know is that fraudsters tend to reduce their assets to avoid or at least minimize judgment. Fraudsters are very clever at hiding, dispensing, and disposing of property they are not entitled to, and part of this dispensation is selling property. This is why it's so vital to pay close attention to the fraudster's address throughout the whole duration of your case because you have the power to monitor that property and report back to your lawyer what you see as long as you get a screenshot of what you see on your device when monitoring that property. This is what I did and I was able to approve my claim and I told the lawyer how I knew what happened despite having no car, little money and hardly any contacts. I told the lawyer what the sign looks like, what color it is, what it said where it was, whose name and number was on it, and when it appeared. This day and age with busy lawyers, it's sometimes up to you to do the little things, because with their busy schedules they may not catch every little detail until later. If someone would've brought the fraudster's property before the case was settled, then we would've had to somehow recover the land and there would've had to have been a full refund to the unsuspecting buyer. I'm just glad we didn't have to end up confiscating the property from an unsuspecting buyer, this would've been much harder for everyone, especially the unsuspecting buyer and I would've hated to see an innocent person caught up in this mess. This is another reason why I strongly encourage having Google Street view these days because you never know when you'll actually need it, and I mean really need it for some important case. If you have a lawsuit against someone who happens to own real property, you'll need Google Street view to monitor those properties from the comfort of home or wherever you are. If you have a Wi-Fi signal and a mobile device, that's all you need. Just open Google Street view and you can even bookmark the search for later. What makes pulling up that particular address so quick and easy for me as I have the screen set a certain way and my device remembers my setting. I have the address I want to check lined up to be in a specific spot on my screen and I know where on the screen to tap and open the screen to that particular address. This is how I'll know what's going on with the property of the defendant I'm going after. If they only real property, this is the way to go, Google Street view! ???? I speak from experience because I'm currently going through something right now and it looks like my dad's POA also exercise those powers after he died. Long story short fast forwarding to now, neither her or the funeral home ever contacted me because there was nothing on the police backlog of any such contact from the funeral home or the POA in an effort to reach me about dad's death as his body laid up at the funeral home. The POA took over his financial matters after his death, the person at the funeral home specifically specified that. By time this is all done and over she's going to lose everything she fraudulently gained from my dad with Alzheimer's because he wasn't competent to make competent decisions so he couldn't competently consent. I even found an article somewhere online that says the person who takes advantage of someone they handle money for can face penalties for stealing, those penalties are enhanced if the person happens to be elderly and especially more so incapacitated mentally. She may have thought she could get away with it until I just so happen to have accidentally found the right lawyer at the right time but I wish I would've had this lawyer much sooner! I don't know that this fraudster may not even be on the run right now but I can now start asking how many more people has she done this to?? Of all the different addresses she's live at, I must ask how she obtained them and at who's expense? I'm not sure where you are, but if you happen to be up in Lorain Ohio or anywhere within the county specifically Vermilion, watch yourself! There is a lady in her 50s who may have been at it a while and I have some very serious questions because this particular thing has me stumped. Yes, I'm very shocked

A fellow caregiver answered...

It sounds like it's time to call your State Bar Association and tell them what you told us here. They can point you to the right lawyer