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My brother and I both have power of attorney on my mothers…

Customer Question
My brother and I...

My brother and I both have power of attorney on my mothers bank accounts she has allowed me to transfer some money to help pay so bills he is now accusing me of taking the money and going to a lawyer today to see if he can have me removed he has also recently taken my mothers check books. She has mild dementia and I fear he will play with her judgement. How do protect myself

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

New york

Lawyer's Assistant: What steps have you taken so far?

Nothing

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Do I need to speak to a lawyer or the bank

Submitted: 3 months ago.Category: Legal
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3/23/2018
Lawyer: legalgems, Lawyer replied 3 months ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,597
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Lawyer: legalgems, Lawyer replied 3 months ago

I am sorry to hear this;

a power of attorney has the principal - the elder person who owns the assets; and the agent- the person acting on behalf of the principal.

The agent has a fiduciary duty to act in the best interests of the principal and to not "self deal" (ie to not personally benefit from the transaction).

So for example if an agent is paying a bill there is generally no need to transfer money from the principal's account to the agent's; rather the agent, using the POA, can transfer money from the principal's account straight to the creditor.

So long as the debt is legitimate the agent is not in breach of their fiduciary duty.

The person alleging breach of the fiduciary duty has the burden of proof- by clear and convincing evidence.

If there is a question as to that issue the party alleging breach may request an accounting; if the accounting does not reveal any wrongdoing then generally that is the end of the inquiry otherwise the person making unfounded allegations can be liable for attorney fees and costs, and removed from their position as fiduciary as well.

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Customer reply replied 3 months ago
Do I need to get a signed note from my mother that she agreed to it
Lawyer: legalgems, Lawyer replied 3 months ago

If the bill was in the mother's name and paid on behalf of the principal then generally that is not required- as that is the whole point of the POA.

However if the mother is of sound mind and can attest to the fact that it was within the authority of the agent per the POA that can help (sound mind means the person understands what they are signing and it's legal effect)

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Lawyer: legalgems, Lawyer replied 3 months ago

Hello; just checking in on the above.
If you have further questions please post here and I will do my best to get you the requested information.
Otherwise
kindly rate positively (hopefully you feel I have earned 5 stars) to help maintain my high customer satisfaction score and so I know you were satisfied with my services.

The above information is for educational purposes only. An attorney in one's jurisdiction can be located at https://www.americanbar.org/groups/legal_services/flh-home.html
Thank you.

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