Power of Attorney - Fraud, Legal ?

[Mattlt]

My Dad is in a nursing home with dementia, but my Mom still lives on the home farm place. My younger brother (and his wife) also lives on the farm (different house) and acts as Power of Attorney for both our parents. They pretty much took away any financial control from my Mom... They gave her a credit card to use to buy gas, groceries, meds, and some spending money. She just never saw anything to do with the finances. Most of the time there wasn't any need for her to have to worry about it - the bills seemed to have been being paid.

Well, a few weeks ago things hit the fan when her credit card was denied. Sister-in-law said it's because the Soc Sec deposit doesn't go in until the 3rd of the month... blah blah blah. After some pushing, the Sister-in-law's house of cards came down. She confessed to spending around $20K on Mom's credit card, then paying for the stuff from Mom's bank account (using checks that my brother had pre-signed checks and/or online banking access) I was amazed that my parents Soc Security checks added up to such a large amount over the last few years.

We've since gotten our hands on bank statements, credit card statements, etc. Over $5k spent on kids' clothes, thousands more to some of these home-based business deals that sell baskets, candles, etc (Sister-in-law is a dealer for several of these products.) She says she's going to dip into a 401K or some such source to pay it all back. And of course she's saying she's got a "disease" and has been seeking counseling. She was barely covering the interest charges on such things as my Mom's heating bill, while she was buying junk like crazy.

I know this is hard to believe, but I really don't believe my brother knew anything was going on. He was believing his wife. My wife and I were always curious if something was going on but were never able to see the books to verify. All the while they were going through audits from the Medical Assistance people because of my Dad's nursing home situation. These people didn't catch anything either. (Which is another piece of this puzzle that I won't go into in this thread) My brother believed that his wife had things under control, and certainly if anything was wrong the M.A. audits would catch something. Apparently not!

Here's where I come to my question. I realize there's enough evidence to charge my sister-in-law, but what about my brother? He's obviously been negligent in letting his wife spend all this money, but I don't believe he did anything criminal. Would the courts agree?

They are trying to work on the marriage for the sake of their two kids. One counselor they talked to said it would have been easier to overcome an affair than something of this nature.

I'm trying to be a forgiving person in this situation, but I'm not sure that's going to be the outcome. I'd personally like to see my brother "cut his losses" and divorce the B....! So far, my Mother is willing to forgive her, and my other two siblings and I have been respecting her wishes.

 

[Hotflashjr]

I believe it's more embelzement than fraud. You should take the power of attorney away from your brother and his wife through the courts immediately regardless of respect, forgivencess, etc. If it's a "disease" it will happen again.

 

[Mattlt]

I should mention, I have been added to my parent's accounts now. So I at least have access to the information.

My brother is talking about willfully giving up the POA and handing it over to me.

 

[Bob]

You need an ATTORNEY, NOT advice from a bunch of tractor lovers!

 

[CLTX]

As Bob said, you need advise from an attorney. A POA is a huge responsibility. BTDT.
C. L.

 

[Tyler Jackson]

It bugs the heck out of me when people say they have a "disease" if they're really really fat or in this case spend to much. It's a "disease" because when they get caught they have to think of something to let them off easy.

 

[sdc eastern ia.]

Get a good attorney. I bailed out my sister and her husband from credit cards only to have him load em back up again at the casino's. Make sure if you get poa none of the previous problems end up on your shoulders.

 

[JWalker]

Get advice from an lawyer, but until then have all accounts set up so it takes TWO people to sign checks or make any kind of withdrawel from the accounts.

 

[Chris(WA)]

Talk is cheap. Go down and have it done TODAY!! Not tomorrow, not after counceling, TODAY!!!

 

[Anonymous-0]

That's the least he should do! There's no way POA should be in his household. You have no way of knowing if he knew what his POS wife was doing. He had to be wondering where all the money was coming from for the kids clothes and other things. Only an idiot would believe he didn't notice all the new clothes and other stuff. He can only claim ignorance so much. That's a lot of money to steal/embezzel(sp). I would have his wife charged to the fullest extent of the law. What she did is dispicable(sp) and if your brother knew anything about it would come out in court, in which case he should be charged as well. Maybe to a lesser extent though. Get the best attorney you can! At the very least, your brothers wife should be ordered to pay back all monies stolen plus interest, even if it means garnishing her wages and future earnings or even taking away her retirement pension. If she's this much of a loser, your brother shouldn't stay with her just for the kids sake. His life would be miserable.

 

[Paul from MI]

My family has had two experiences with people running up credit cards, neither one came out good. One relative ended up divorcing his wife over her running up bills. The other was related to my wife and we finally had to take over her finances. Fortunately my wife is a very astute, sensible gal and straightened out the matter, but without her control it would have ended up far differently. My experience is that when someone can''t control themselves they rarely get better. Make absolutely sure that you are in control and double check everything and everyone.

 

[sotxbill]

first thing... the wife screwed up... so take the account away, remove any power of attny from her or you guys are negligent. DO IT NOW!!!!!

second thing... make the wife, in writing, commit to pay back the money.. or you will file charges..

no ifs no ands, no buts... get a payment plan in writing and with or without interest. Maybe consider a lein on property or make them take a loan from the bank on their house,, but make it happen next!!!!

Then when all this if fixed and turned the corner... try to forgive her if you can,, but for your brothers sake and thier kids.........

filing charges will not fix the intial problem of getting the two above items fixed,, so it should only be done after the first two items are fixed... once she is in jail, hell will freeze over before you get anything back for your mom and dad, plus legal fees will eat you alive..

And its all about you mom and dad, isnt it???

Next, whoever the new "power of atty" is,, be subject to audits quarterly by one of the family or by and an outsider.. if one of the family will take on the risk and responisbility of being an auditor, it will not cost your parents lots of money..

 

[Anonymous-0]

You need to find a good Attorney like Bob said. Your brothers wife could be faceing some big problems.If she had a 401k plan why did she have to dip into your folks money?

 

[paul]

> My brother is talking about willfully giving up the POA and handing it over to me.

Do this. Do this now. SiL has a problem, it will come up again, like any addiction sort of behavior. Get control of things, get both of them totally out of control signed and witnessed, and break any ties from when they had control to when you have control. Move assets to different bank so the old account is totally dead, etc., so there is no way for the addict to chisel a way back in. Seriously, it will happen again.

For the sake of family, you might want to stop with that, let the rest go? Hard to do, I'd be as steamed up as you are, but if mom's wishes are to forgive, so be it. You'll only make the next months/ years much more difficult for everyone, your call on how to deal with that. I understand the anger.

But, do not let things sit, or this _will_ happen again. If they do split, she'll get it all cleaned out before she goes and then you all have a real mess......

Deal with it, visit with laawyer this week yet. Lawyer costs money, but you need things switched over, and you have the leverage of saying to switch now no access, or we do file against you - say so very gentley and quietly, but let it be known the option is there and switching poa & rep of estate is kinda immportant to what happens next.

Another thing to deal with, who will eventually be in charge of an estate - not pleasent to talk about, but on day of death, POA also ends, you don't want things dropping back into a family that is seriously considering divorce, you will be right back to the very same situation with assets locked up and tied to 'her' again. Be sure to investigate that situation. Lawyer is best to unravel both of those issues into a solid situation for you.

Stop the problem now, both POA and Rep of Estate.

Good of you to have worked with family as you have, shines good light on you. Sorry for the extra troubles you are going through, it's generally a tough enough time, and then such things get dropped upon you. Been going through stuff of my own, trust me things get worse after POA ends, you want signatures and witnesses for all these documents. Seriously.

--->Paul

 

[Abbeyfield]

Thinking about giving up the power of attorney? THINKING about it??? It has been misused whether fraud or embezzle, and should be ENDED! There are fiduciary duties (legal responsibilities) attached to POA that were not honored. Get the brother and wife out NOW!!!

PS You did not specify, but I am guessing the POA may be only in the brothers name, not in both him and his wife. This opens up a whole unmentioned can of worms about who is responsible, who knew, what did he know and when did he know it.

 

[Ray]

First get the power of attourney away from her,then contact the district attourney to see if he will bring charges.If your sister in law is stealing,she will lie to cover it up to.

 

[dhermesc]

The first question is, who actually has Power of Attorney?

Most likely it is your brother, NOT your brother's wife.

 

[dhermesc]

Agreed!!!!!!!!!!!!!!!!

 

[John T Country Lawyer]

Im an Attorney, and same as Mayor Bob advises, I say TALK TO A LOCAL ATTORNEY AND DO IT TODAY OR TOMORROW............You need QUALIFIED PROFESSIONAL HELP AND RIGHT AWAY !!!!!!!!!

The law comes down hard on fiduciaries who mis- use their power and its NOT complicated so just gather up all the good hard original evidence you can find to document this mess and SEE AN ATTORNEY ASAP........Theres a good chance you can avoid a bunch of legal fees and not have to mess with courts etc. (if you choose to versus drag the SL through the mud) if you can get the wrong doer to make amends.

John T BSEE, JD Attorney at Law

 

[Anonymous-0]

After seeing exactly what a situation like this thread is about can do if you wait, the best advice I have is find that lawyer THIS AFTERNOON if possible. Once money is gone, it's gone. It MAY be recovered at some future date, but far more likely it won't. Stop the bleeding NOW. Worry about who's wrong and who's liable after that.

Good luck.

 

[jackinok]

I've got to ask,maybe I missed it somewhere,is your mom capable of handling her own finances?if so I would think it would be her decision. and is so how did she wind up giving your brother power of attorney?MY opinion and its worth about nothing is would you even have the right to get involved according to the courts?you could report it as a crime obviously ,but sil could always say mom let her have the money and if mom couldnt deny it it might be hard to prove.brother may be the one who needs to persue this .if he had full poa,and she was using account without his knowledge,he might have a better chance of prosecuting.,just trying to look at the legal side.even if you reported it as a crime it would be up to him for proof i would think. and the burden would fall on him to prove he wasnt really involved.either way a good old fashioned wife beating would be in order! lol..I feel for you,bad thing wheather the outcome is ac or dc. sad these things happen,but they do far too often.

 

[John Harmon.]

I'm reading all the responses below but I see where no one mentions that as a POA isn't a Fiduciary Bond needed to be aquired and filed? Most states require one for an Estate Administer.Why not for a POA,and how about this situation and yes retain legal advice "NOW". You are going to have to work hard to salvage a family situation out of this.

 

[tlak]

My guess is the 401k's are empty too.

 

[paul]

Like others are saying & I implied, deal with changing things - both poa and in charge of eventual estate - first, do not try to bring charges. You will be able to deal with them while they have some fear in them. Keep the law away from this issue for a while, but get a neutral (your) lawyer involved to sort out the control of the money.

There are many, many tiny details everyone has mentinoed along the way, and any one little bitty one can have a very long tail on this..... Law & courts don't always follow common sense, you need many things documented and witnessed and changed to keep both your brother & sil from having any sort of lingering access to these accounts now or later.

1. Get control away from them first;
2. Then see about a way of calmly (privately) getting the money back second;
3. Then consider legal action last if that is a path that feels right at the time.

Don't go in a different order, it will end badly.

Right now they (she anyhow) are realizing they are in trouble and thinking up ways to get around this, cover it, run away from it, make it worse becasue they're already screwed, etc. You need to act quickly and stay ahead of this.

--->Paul

 

[oldtanker]

Needs help? Has a sickness? IMHO it's called denial of responsibility and as long as it's socially acceptable to claim that it's not going to get better. Hate to say it but sis in law needs to spend some time in front of a judge over this. Then maybe be forced into the job market to pay it back. That and some community service may be all it takes to "cure" her.

Go see a leagal beagal NOW!

Rick

 

[paul]

No? Not in family matters? Perhaps in a govt or business setting, but never heard of such a thing in a family setting - the folks just waive off any such thing if it would be there when it is set up, good to go?

--->Paul

 

[John T Country Lawyer]

Generally speaking in our jurisdiction for a Power of Attorney a bond is NOT required as a matter of law (nor is a fee required), although the parties can specify such if they so choose, I let my clients make that call. As far as estate administration, the Judges here look at the situation and sometimes require a bond other times not, but again the Testator can opt for one.

John T

 

[Mattlt]

OK, Here's what we've done so far.

1) Taken the checkbook away from her.
2) Added my name to bank accounts. There are some auto-payments that are set up on the accounts that prevent immediately closing the accounts. They will be closed and re-opened as soon as possible.
3) Changed passwords on online bank accounts, etc.

As mentioned, my brother is POA alone and has account privs, she is not POA and cannot access the bank accounts alone. She was using pre-signed checks and/or online access to accounts that I'm sure she talked my brother into setting up.

We have spoken to a lawyer, and my brother is OK in giving up POA, because as he puts it, he failed. My wife and I are taking care of their bills now... Also looking to get Mom moved into an apartment in town as opposed to staying in the old unsafe farmhouse by herself.

Yes, my Mom is of sound mind. She could very well take care of her finances, but for whatever reason let my brother and his wife do everything.

My brother took over the farm several years ago (10+). I think it's a Life Estate? Could be wrong about that. At that time, he "paid off" his siblings for the privilege of taking over the family farm, with the understanding that he'd take care of the folks.

 

[Mattlt]

Why use your own money when you can use someone else's?

 

[Deere Scotty]

It should be done the way my parents did it! If you have 3 children; then all 3 have to sign to transfer money. Its in the banks computers that way too. I have a relative that is a grade A Alcoholic who would sell her soul; let alone anything anybody else has for that next drink, & has done so!!!

 

[just another old geezer]

Actually, the answer here is quite simple. 1. get the POA out af that house NOW, to stop any chance of this continuing. 2. get leagle liens or other security agianst the sister in laws assets asap, before they dissappear too. then sort out leagle liability later.

 

[fixerupper]

Can't give any advice and I certainly won't harp about what you should have done but you and your family are in my thoughts and best wishes. Family trouble like this can be worse than losing a family member. Hope everything turns out for the best of everyone. Jim

 

[cole in mo.]

when dad died my youngest brother and his wife got poa and cleaned out all of his accounts plus all he had in a savings and loan. Mom was in a nursing home, so they also got the house and property. Took everthing they wanted, including what was sopposed to got to me, had a sale for what they didn't want, and sold the property. Sometimes poa is ok, other times it breeds greed.

 

[Gun guru]

I agree with John T. Get a lawyer...NOW.

If your parents loose everything due to this horrible crook of a SIL and all the money is gone and your parents lives are wrecked then break the 8ithes legs with a pipe......It will make you feel better. And then tell your brother to divorce her. (which he should anyway)

My wives sister is waiting and drooling for my MIL to kick the bucket so she can snatch all of the saving out of her account. I made my MIL get a will done up after my FIL died 5 years ago. I informed my wife that I dont trust her sister as far as I throw her (and she is 50 lbs overweight) My SIL asked for her inheritance from her grandfather-----Before he died! What a fricken loser.......a lot of 8alls to ask that.

 

[Anonymous-0]

If your brother was the lone POA, he HAD to know what was going on and is just as guilty! Like aiding and abetting in a criminal case or being the get away driver. Don't make excuses for him. He didn't just fail. He is responsible for it happening in the first place! Whether he's your brother or not, you have ever right to be thoroughly pi$$ed at him and should hold him accountable just as much as the SIL. Who would mess their parents finances like that, especially when your mom is still alive and of sound mind. It's just wrong in every sense.

 

[Anonymous-0]

In a second I would have called the police and county/state adult protective services. You have solid evidence of elder abuse, and identification theft. Perhaps not everyone feels the same but my parents are more important than my brothers wife. Let them hire the lawyer.

 

[gorilla]

Plain and simple your brother is the power of attorney and he IS responsible and liable. Pre signed checks????? Why in the world would you have presigned checks laying around? You need to do more than add your name to the account. You need to make sure both of their names are off of the account. Establish good records when you take over to make sure that you arent blamed for anything that is missing.
When you are the custodian of someone elses money you should be keeping perfect records and if you make them open to your siblings. That way your are complely above board and there will be no surprises or accusations down the road.

 

[M-MAN]

All kinds of good legal advice but what you have to ask yourself is this. Is it worth it to destroy Mom's remaining years?

I think I know pretty much what you're going through. My brain dead baby brother has been robbing Mom blind for years. Trying to talk to her about it does nothing but upset her & she'll stay mad at you for a long time. He's her baby so no matter what he does it's ok. Mom would rather lose everything she has and sleep on the ground than force him to be a man. I pretty much decided that since it's all Mom's she can do what she want's to with it. Should she end up needing a place to stay she's welcome here. As for the baby brother, I woulden't even bother to pe- on him if his rear end was on fire.

 

[kyhayman]

Get a lawyer, get a paid in full date when she is going to pay it all back, and get the POA changed, yesterday if possible, today if not. Thats all well and good she has a disease and is seeking councelling. If she pays it back withing 45 days and gives up POA then she doesnt get to go to jail for treatment. Otherwise, I would push prosecution to fullest and most immediate extent of the law. Brother may not have known, stupidity is not illegal (in most jurisdictions). But, it was done in his name so he has an obligation to make it right. As to their marriage and all that, thats their business. Your responsibilities begin and end with your parents.

Its hard, I know. Im the sole caregiver of my mom. She had a traumatic brain injury a few years ago and dad died a year and a half ago. We hire people to come in to help her with housework, hygene, and all that but its still a hassle. But, Im her POA, and her son. Its my legal and moral responsibility, by law, to see that things are right and if they arent to do whatever I can in her name to ensure they are.

 

[Mattlt]

Paul,

I appreciate the advice. These are the exact steps my siblings and Mom are taking. We are talking about putting the "payback" funds into a totally separate account that will require multiple sibling signatures to access. This will likely be used in the short term to pay some of Mom's debt (heating bills and the like) and hopefully some furnishings for an apartment someday soon.

Hopefully this thread will serve as a reminder for people in similar situations to ask questions. Ask to see the books. We did ask, but were always brushed off. We should not have backed down, but we did.

 

[oldtanker]

I had POA and managed my moms money for several years before she died. While there were a few times in there where I could have used a few extra bucks I never took any from her. I worked extra jobs and or sold a few of my things when needed. When it was all said and done my sis got everything in the house and the bank. I got the farm. No fights or problems. Good friend grandma died and left everything to her 3 daughters. One embezzled close to 50K and tried to sell the family farm out. One daughter gave her share to her 2 sons and the other daughter still owns her share plus the corrupt sisters share after buying it out. The sis owner is in very poor health now, and the one grandson has no interest in the farm. It's fixing to be another family fight over this. And who knows what the outcome will be.

Get this fixed now before it destroys the family. Your SIL belongs behind bars. I really have trouble with that disease stuff. It's just a way for the libs to try to claim that actions like that are societies fault. Refusing to acknowledge or accept responsibility is the norm.....I have a disease! And staying together for the kids???? In this case I have to ask.....how good is it for the kids to be learning this behavior from mom?????

Rick

 

[Ryan - WI]

I didn't see this mentioned in the replies but I may have missed it.

You may want to reconsider having your brother forfeit the Power of Attorney. Most PoA's list two potential individuals to serve. In most cases it is the spouse first and if unable or unwilling, another individual.

As far as I know from my history with them a power of attorney is not transferable. Your brother cannot just give it to you. Your father would need to resign a document declaring you PoA. If he has dimentia to the point of incompetency he cannot legally sign that document. If your mom was the primary PoA and refused initially I do not know if it could revert back to her.

Your brother most definitely did screw up but a less than perfect brother as PoA for your dad is better than none at all.

Make sure you know exactly what will happen if your brother forfeits his poa before you do it. The devil may be in the details.

 

[Anonymous-0]

"In general, a Durable Power of Attorney is effective until the principal dies, unless the principal revokes the Power of Attorney, or termination of the Power of Attorney is provided for by the very terms of the instrument creating it. A Durable Power of Attorney does not, however, confer any power over the principal's assets after the death of the principal."

If your Mother is of sound mind and it seems she is then why not revoke it???

 

[Ryan - WI]

(quoted from post at 01:46:02 06/24/11) "In general, a Durable Power of Attorney is effective until the principal dies, unless the principal revokes the Power of Attorney, or termination of the Power of Attorney is provided for by the very terms of the instrument creating it. A Durable Power of Attorney does not, however, confer any power over the principal's assets after the death of the principal."

If your Mother is of sound mind and it seems she is then why not revoke it???

It isn't the Mother's POA to worry about. It is the father's who is not of sound mind.

 

[Ryan - WI]

(quoted from post at 01:46:02 06/24/11) "In general, a Durable Power of Attorney is effective until the principal dies, unless the principal revokes the Power of Attorney, or termination of the Power of Attorney is provided for by the very terms of the instrument creating it. A Durable Power of Attorney does not, however, confer any power over the principal's assets after the death of the principal."

If your Mother is of sound mind and it seems she is then why not revoke it???

It isn't the Mother's POA to worry about. It is the father's who is not of sound mind.