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  1. #1
    RRH1964 is offline Junior Member
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    Question Power of Attorney hiding financial info from siblings

    What is the name of your state (only U.S. law)? Texas

    Hello,

    When my father passed away, my mother became the beneficiary of his estate. My mother had a stroke last year and became mentally incapable of handling her financial affairs. My father had appointed my oldest brother as Statutory Durable Power of Attorney if anything should happen to my mother.

    The problem now is that my oldest brother is keeping all the financial activities, such as bank balance, where the money is, how much is being spent of it, and so on.. a complete secret from the rest of us. There are three children in this family, myself, my middle brother, and the oldest brother who is Power of Attorney. My mother has even asked my oldest brother to share the bank statements with myself and my middle brother so that we would all equally know what was going on. He simply won't do it and becomes highly irate when it is even mentioned.

    We suspect he is spending large portions of the money on himself and that's why he won't divulge or share any info with the rest of us. We can't afford an attorney, what can we do?

    Any help would be tremendously appreciated! Thanks in advance for your time.
  2. #2
    anteater is offline Senior Member
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    My father had appointed my oldest brother as Statutory Durable Power of Attorney if anything should happen to my mother.
    Can you explain that, please? Your father can't grant a power of attorney to someone for your mother. Only the principal (in this case, your mother) can grant a power of attorney to an attorney-in-fact.

    What exactly is your mother's physical and mental condition? You say that she "...became mentally incapable of handling her financial affairs." But, at the same time you say that she has asked older brother to share financial statements with you.

    Further responses depend upon answering those questions.
    Last edited by anteater; 08-02-2011 at 07:16 PM.
  3. #3
    RRH1964 is offline Junior Member
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    Thank you for your response. I've uploaded the first 2 pages of the Power of Attorney document that was filed. The links below should answer your questions if you would be so kind to view them.

    Page 1 -- [url]http://i51.tinypic.com/11rg2vc.jpg[/url]

    Page 2 -- [url]http://i53.tinypic.com/2mrworp.jpg[/url]


    Regarding my mother's condition, she is in assisted living, diagnosed with chronic brain failure and dementia. She can still communicate fairly well, and we talk on the phone at least twice a day, every day.
  4. #4
    anteater is offline Senior Member
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    Well... I know that you blacked out names. But from what I can see, that document was done by your father and grants power to your mother to act as your father's agent. And, if your mother cannot or does not wish to act as your father's agent, then his son (your brother, I assume) is appointed to act as his agent.

    The power to act under this document ceased when your father passed away.

    Is there a similar document where your mother appoints your father as agent, with your brother appointed to act as agent if your father cannot? If there isn't, then your brother has no legal authority to act as your mother's agent. If so, then it would be interesting to know how he is getting away with it.

    Did your father and mother own most of their assets jointly? Was there a probate undertaken when your father passed away? What I am getting at is: Were the assets (bank accounts and such) re-titled to show only your mother as the owner? I'm wondering, if the assets still bear your father's name, if your brother is still using that POA from your father to undertake transactions.

    Theoretically, even if your brother did have a power of attorney to act as your mother's agent, your mother could revoke it and appoint another agent. Or, if he actually does not have the power, she could grant power to someone else.

    But, with that diagnosis, I just don't know that she would be considered to have the legal capacity to do so.

    The law regarding POA's is state specific and I don't want to go too far in discussing Texas. But, generally, the POA is considered to be a matter between the principal (the person granting the power) and the agent. And, if the document does not specify sharing financial information with others or the principal no longer has legal capacity to revise the POA document to require it, then ability to require an accounting of the agent's actions is usually limited to a court-appointed guardian, a state agency that has that authority, or a court.

    So, I am not certain what to suggest. You might try finding a few attorneys with elder law experience to see if you can get a free or low cost consultation.
    Last edited by anteater; 08-03-2011 at 08:25 AM.
  5. #5
    RRH1964 is offline Junior Member
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    Thank you so much for your detailed reply. I'm not certain on what wording was used on my mother and father's will, because I have no idea how to get a copy of it. But I was told it named my oldest brother as executor. After that, no clue.

    Actually, we are not wanting to try to change the Power of Attorney to another person. We agree that the eldest child should be POA. Also, I live approximately 300 miles away from my mother and brother, so it would be hard for me to be there in person frequently.

    The whole problem lies with the fact that my mother, myself and my middle brother all would like to be kept up to date with the spending of my mother's money. Just keep a check on the balance, nothing else. My mother had said she wanted everything out in the open so no one has to worry. I think that is a normal request. The fact that my POA brother is not cooperative with this request and keeps all the financial activity a secret has raised many suspicions. We were just wondering if there was a way to check on the balances or his spending of her money. A bank statement sent to all 3 children once a month would certainly suffice. Is this possible?
  6. #6
    anteater is offline Senior Member
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    Quote Originally Posted by RRH1964 View Post
    We were just wondering if there was a way to check on the balances or his spending of her money. A bank statement sent to all 3 children once a month would certainly suffice. Is this possible?
    The short answer is: No, for the reasons that I laid out in the previous post.

    The longer answer is that there are a number of open questions:

    1) Does your brother actually hold power to act as your mother's agent? You did not answer whether there is a document covering your mother similar to the one for your father.
    2) Does your mother have legal capacity? And, even if she does, is she willing to take legal action?

    Short of legal action, your brother can ignore everybody.
    Last edited by anteater; 08-03-2011 at 09:57 AM.
  7. #7
    RRH1964 is offline Junior Member
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    Thank you again for your help, it is truly appreciated. I do know that my mother was checked out at a mental assessment facility shortly after her stroke. A doctor there signed some sort of paper stating that my mother was mentally unable to handle her finances. Immediately after that my oldest brother became Power of Attorney. It would seem so dangerous and inadvisable that a POA can keep everything secret and has to answer to no one. I'm basically at a loss for words on this matter, it's so unreasonable. My mother has many days where she's totally lucid and makes perfect sense about everything. Other days she's almost unresponsive and just wants to sleep. So I guess my last question would be.. regarding my mother, if she were able to call the one bank that she can remember having an account with, would they send her a monthly bank statement if she requested it?
  8. #8
    anteater is offline Senior Member
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    Immediately after that my oldest brother became Power of Attorney.
    One does not just "become Power of Attorney." The principal has to grant the power to the agent/attorney-in-fact.

    It would seem so dangerous and inadvisable that a POA can keep everything secret and has to answer to no one. I'm basically at a loss for words on this matter, it's so unreasonable.
    A number of state legislatures are wrestling with this issue. Some states may have made some revisions in this area. I am not aware of any that have, but it is difficult to keep up with what is happening in all 50 states and DC.

    The general prevailing legal point of view is that the Power of Attorney relationship is between the principal and the agent. And short of a requirement written into the POA document requiring the agent to account to others, the only party with standing is the principal (or a court-appointed guardian, a state agency that has that authority, or a court.)

    So I guess my last question would be.. regarding my mother, if she were able to call the one bank that she can remember having an account with, would they send her a monthly bank statement if she requested it?
    It is worth a try, but I doubt that the bank will take any action based upon a phone call.
    Last edited by anteater; 08-03-2011 at 10:51 AM.
  9. #9
    RRH1964 is offline Junior Member
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    Thank you again, anteater. (interesting name, by the way) I just will have to try and find out some more information, if possible. Your knowledge, time, and patience is very much appreciated. I hope you have a wonderful day and an extra pleasant evening!

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