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Richard, Attorney
Category: Estate Law
Satisfied Customers: 55442
Experience:  29 years of experience practicing law, including tax and estate planning.
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My mother just turned 81, lives in Brooklyn NY, has 4 sons.

Customer Question

My mother just turned 81, lives in Brooklyn NY, has 4 sons. The eldest and myself the second live in FL, the 2 younger brothers are in Bklyn. My youngest brother has been taking care of her and her financials, he does have POA to take care of her business. The last 4 years have been a constant struggle to get information from him on the status or her finances. She had a home in FL, he sold it 3 years ago, and he is renovating the apartment she lives in Bklyn for the last year, in the house that she owns and is paid for. But for the last year none of us 3 brothers have seen her, she is supposedly staying over his girlfriend's place. He has not yet completed the renovations, to get in touch with her we have to call him, when he is available. I am hoping someone can guide me toward some legal way to get through to him. We are getting the runaround from him, she says to ask him, he says she has not told him to discuss anything with us. he is manipulating her.
Submitted: 2 years ago.
Category: Estate Law
Expert:  Richard replied 2 years ago.
Hi! My name is ***** ***** I look forward to helping you!
What you will need to do is challenge your brother's actions under your mother's POA. Being a POA doesn't mean that your mom's assets are your brother's personal piggy bank! A person acting under a Durable Power of Attorney becomes the agent of the principal who appointed him or her. As agent, that person is what the law calls a “fiduciary.” This means that person has a duty to act in the highest good faith for the principal’s benefit. It does not mean that the person can simply use the assets of the principal for the agent's own benefit. In your situation, I would put your brother on written notice by certified letter of the foregoing and let him know that if he does not provide you documentation regarding your mom's assets so you can be assured he is satisfying his fiduciary duty to your mom, including giving you a full accounting of all your mom's assets and money in and out of his accounts and thereafter keeping you informed of the progress, you will be filing a petition with the court to have him removed as POA for breach of his fiduciary duty to your mom and be asking the court to order an audit of the estate. If that fails, file your petition.
Also, as long as your mom's still competent, she can always revoke the POA. To do so, she would need to simply send a letter of revocation to your brother revoking the POA effective immediately and demanding your brother return the original. Even if your brother does not return the original, the revocation is still effective upon receipt. I would have her send the letter by certified mail and/or independent courier so you have independent proof of sending it and the date. Also, send a copy of the revocation letter to any financial institution to which the POA was presented. And, to be totally safe, record it in the county public records so that anyone is deemed to have notice should your brother try to act on her behalf under the revoked POA.
Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). I thank you in advance for taking the time to provide me a positive rating!
Customer: replied 2 years ago.
Well, because he is influencing my mother she will not revoke the POA. Therefore we will have to consult an attorney and have the POA contested. What sort of documents will we need in order to get this process started, we just found out that he has himself listed as proxy when we tried to contact her doctor, when it was my older brother that was originally listed as her health surrogate and what court will we have to file the POA revocation.
Expert:  Richard replied 2 years ago.
Hi there. You'll need to file this in family court. And, you need to produce any and all evidence and witnesses that you have that the brother has been breaching his fiduciary duty to your mom. It's likely as part of this, because you don't have access to many of the records that will show a misappropriation of assets, that you will need to issue a subpoena duces tecum in discovery to force your brother to produce all the financial records.

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