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What if...person A and share a joint account. Person A

What if...person A and...

What if...person A and b share a joint account. Person A request funds from the account and a cashier check is issued "payable to person A AND person B". Person A then forgers persons Bs signature without their knowledge or consent and keeps the money from the check. Person B claims forgery to commit fraud. But what if the police say it's not fraud because even though it's forgery, it's not fraud cause person A was only taking money from an account that was already theirs. So you can't steal from yourself. Who's right?

Lawyer's Assistant: Have any charges been filed? If so, when is the next court date?

Not yet. Police are confused about whether it's fraud

Lawyer's Assistant: In what province did this occur?

Boston Massachusetts

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Answered in 9 hours by:
3/20/2018
Attorney Wendy
Category: Legal
Satisfied Customers: 519
Experience: Member at Keefer & Keefer LLC
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Hello. My name is ***** ***** I am an attorney. I can only imagine this is a frustrating situation for Person B. If the account is a joint account then either one of the account holders - Person A or Person B - can withdraw any or all of the funds in that account without the permission or knowledge of the other person. In that sense, it is not fraud as the funds belong as much to Person A as to Person B. The forgery on the check, however, is a separate issue. It is a violate of federal law to alter a check in any way and it is generally considered forgery. Thus, Person A could be criminally liable, but would not necessarily have any legal obligation to return the funds since the funds legally belonged to Person A.

In this situation and depending on the relationship between Person A and Person B, Person B could pursue criminal charges though the U.S. Attorney's Office in Boston. That said, since the forgery - though a violation of law - did not actually injure (legally, though I am sure Person B feels injured) another person, it will not likely be given priority by prosecutors.

This is an incredibly unfortunate situation. One option at this point is to close the account so that Person A and Person B no longer have a joint account, as there is a clear issue of trust that does not exist such that these two parties should continue commingling their funds.

I am sorry I do not have better news for Person B. If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Customer reply replied 1 month ago
even though the check is Payable to bothe parties? Since the check is cashed without person Bs knowledge, how can person A say it all belongs to them. It's the fraud method in which the check is cashed that releases the funds to person A. No fraud by A, no money for A. The release of the funds was illegal, so the transfer of funds should be also and considered a loss by B. No?

Your conclusion would be entirely correct if the account was not a joint account between Person A and Person B. The legal issue is that with a joint account, either person individually, is said to own all of the funds. So, since Person A could have just asked to withdraw cash and not need Person B's approval (unless there is something unique about this joint account), it is not theft or a loss to B. It is fraudulent and the fraud was perpetrated by the forgery. So, it is not the receiving of the funds per se but the fraudulent misrepresentation that Person B's signature appeared on the check; that could, as you say, be fraud. But again, and unfortunately, since the funds were jointly held, the law does not view it as a financial loss to B unless the account documents expressly required joint consent to withdraw or some other contractual arrangement between Person A and B existed. This is always the risk with joint accounts - that anyone named on the account can essentially control the funds.

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If Party A and B had an agreement - oral or in writing - as to how and when the funds were to be used or that they would notify the other anytime they accessed the funds, there may be a civil claim you could file, but the nature of the joint account will make it very difficult to recover.

Attorney Wendy
Category: Legal
Satisfied Customers: 519
Experience: Member at Keefer & Keefer LLC
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Customer reply replied 1 month ago
Understood. Assuming there is substantial proof of the following. ... Please explain how many lies Person A is allowed to tell person B beforE the withdrawal of the funds can be considered a scheme to commit fraud. If over a 4 year span involving 36 forgeries and 80k, per A told per B repeatedly...
1. that none of the money had been spent
2.That per B had no authority over the account to make withdrawals. And stated that in writing, dated and signed and then...
3. States That the account balance was zero but it wasnt, and then Per A withdrew the rest with another forged signature of Per B...Along with Commited forgery 36 times to deposit the funds into their own accountAt what point does secretes and mere misrepresentation become criminal fraud in this case? I understand person A has unlimited access to the joint funds but do they enjoy unlimited deception as well?
Customer reply replied 1 month ago
do the forgeries contributE to a lack of credibility to per A to explain all this as a simple mistake?

I think the forgeries are the biggest problem and the strongest evidence of wrongdoing - in other words, why endorse the check(s) with the forged signature if not to hide the fact that the money was withdrawn. The other problematic issue is representing that Person B could not withdraw money, but in any court case the question would be asked whether it was reasonable for Person B to believe that (I don't know that it is or isn't -just highlighting a question that would be raised). Without knowing why the account was set up as a joint account and what the funds were intended for I can't provide much insight on the situation with the actual use or spending of the money.

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Customer reply replied 1 month ago
Actually acct was set up as joint Person A, Person B, and Person C. Person C was primary as she was original owner. She devolved Alzheimer's and person A and B were added as a means of convenience. Person B was told by A that Persons C POA would be monitoring the account but POA was 85 yrs old and entrusted that to Person A who claimed she was back up POA of C, who then liquidated it as described above before both Person C and POA died. Person C was not well enough to monitor the account and person B just did as POA told him to do and was not involved as he believed he had no legal authority regarding acct . But person B did ask questions of person A and POA throughout the years and was told none of the money was being liquidated, etc. And as stated there is proof of this, some in writing to Person B by C including the "no access and no authority to withdraw from acct",All told person A liquidated and kept 300k from C from varies joint accounts changed by A with undue influence. Person B was not owner of them but a benifiecy of them.So again, regarding the acct detailed, is this criminal fraud or just civil?Believing what I stated, is this a scheme to defraud B and C?Thank you
Customer reply replied 1 month ago
Ps money was used for personal and business use by person A including 55k in legal gambling

Okay, this may pose a different problem. If you are able to get a copy of the Power of Attorney to determine what the actual terms were that may help. And, in any case, if the funds were primarily Person C's money and Person A and Person B were simply added to help manage those funds and take care of them in the place of Person C, who was unable to do so for herself, then you may have claims for fiduciary duty, essentially a personal embezzlement. This is a serious issue and should be addressed and could result in civil and/or criminal liability for Person A. If acting for another under a POA, you owe that person whose affairs and funds you are management a fiduciary duty to take action in the best interest of that person (here, Person C). Use for the agent's own personal or business matters is unlawful.

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Customer reply replied 1 month ago
If there's a gift clause In POA does that allow the liquidations?

Does the gift clause merely allow gifts to be made by the agent at the agent's discretion?

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Customer reply replied 1 month ago
No specific limit
Customer reply replied 1 month ago
Btw is your practice in Massachusetts?

With a gift clause, there is still a fiduciary duty to the person on whose behalf the agent is acting. It would also appear to be a conflict of interest for an agent to gift anything to himself/herself or any business owned or operated by that agent.

Unfortunately, I am not located in Massachusetts.

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Customer reply replied 1 month ago
I assume a gift must be clearly mark as such in writing? Also is it abdication of duty if POA never signs as POA although it is clear Person C is medically impaired; meaning transactions are still being signed by Person C while impaired instead of the POA signing on her behalf, leaving the appearance that Person C was still in charge of their finances. Thus POA should of taken over but doesn't cause it personally benifits the POA financially. Is there a name for that civil charge?

I think the most likely claims are breach of fiduciary duty by the agent (Person A). If Person C is competent to take care of the finances, then only Person C should be doing so. If Person C is not competent but thinks he/she is, then someone should be filing with the court to deem Person C incompetent triggering the POA. If Person C is incompetent and not arguing about that fact the POA should automatically kick in, but anyone operating under it should sign as agent for Person C and not individually and certainly shouldn't be taking funds for themselves unless it is for legitimate services rendered to Person C and can be verified.

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