power of attorney abuse

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

My brother was given power of attorney by our mother. He used this power of attorney to access her bank accounts to buy himself a truck, big screen TV, remodel his house, etc. The money was supposed to be used for the care of our mother who had dementia. Is this a criminal offense, or a civil offfense, or both? Can a complaint be filed in the criminal courts against my brother? My mother is now deceased and there is nothing left for the heirs listed in her will, and if she had not died when she did she would've been broke (my brother had spent all of her money. We have partial bank records documenting his purchases of personal items for himself.

I’m afraid there is little chance of the brother being convicted, much less prosecuted for embezzlement. Without mother available to refute, there is too much chance for reasonable doubt. He could simply testify that she agreed to all of the questioned expenditures.

That leaves only a civil remedy to seek restitution. But the problem there is that since he stole his mother’s assets and not those belonging to his siblings, they would have no legal standing in court to bring a civil action.

The real party in interest as to such a claim for restitution would have been the mother. However, that claim didn’t expire with her death. It past to her estate.

My suggestion is that you speak with an attorney in your state familiar with Texas probate law and explore the possibility of having someone in the family file for the appointment of a Temporary Administrator (Texas Probate Code Chapter VI) with the specific power of pursuing a claim for an accounting against the brother on behalf of the estate.

There are always time constraints in these matters so if you are going to do something, don’t sit on it too long.

Now here is an important point. I mentioned that the brother could raise reasonable doubt in a criminal case by testifying that his mother agreed to his use of her money.

He could not submit such testimony in a civil case filed on behalf of the estate.

At least that is the way I read Texas case law interpreting the state’s Dead Man Statute:

“The Dead Man's Statute prohibits admission of a decedent's words or actions through a third party who could benefit.” See: Evans v. May
Texas Court of Appeals, First District 923 S.W.2d 712, April 11, 1996.

But rely on the advice of your Texas attorney. This is only offered as general information.

Sax