How to ensure POA is acting in best interest of grantor?

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sandramjet
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How to ensure POA is acting in best interest of grantor?

Post by sandramjet » Tue Jun 18, 2019 3:19 pm

I have a sister who has durable power of attorney for our elderly mother, who is home bound with caregivers. However, she is unwilling to share any meaningful sort of information about mom's finances with us. I have access to one of the accounts that mom uses (supposedly her main checking account), and yet am unable to reconcile the information on that account with the once a year expense summary she provides (albeit typically more like once every other year...). As an example, the summary shows SS income ... but I have never seen a SS deposit into the account. But what is troubling me most is that I have seen charges for things like hotel rooms in places where my sister vacations, and payments to organizations that are associated with my sister, not my mother. I would like to require her to provide actual receipts and full accounting of all the accounts she has under her control, to ensure that she is not using mom's money for herself?

Questions:
Other than petitioning the court for records, is there any other good approach to getting this information?
Has anyone had any experience trying to get a sibling to provide such info? Did it poison the family relationship forever (as I suspect this might)

brandy
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Re: How to ensure POA is acting in best interest of grantor?

Post by brandy » Tue Jun 18, 2019 3:30 pm

I'll be following this--I'm a mom with 2 40 yo kids...
When I originally wrote my trust, I instructed that the trustee was to keep the successor trustees advised as to status of everything. (here, a trustee can go to court if there's a problem,I suppose other places, too.) It occurred to me that I may may become incapacitated, and I want a different person as trustee in that case, until I die. I want that trustee to also keep the others informed.
Last edited by brandy on Tue Jun 18, 2019 4:15 pm, edited 1 time in total.

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dm200
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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 » Tue Jun 18, 2019 3:35 pm

sandramjet wrote:
Tue Jun 18, 2019 3:19 pm
I have a sister who has durable power of attorney for our elderly mother, who is home bound with caregivers. However, she is unwilling to share any meaningful sort of information about mom's finances with us. I have access to one of the accounts that mom uses (supposedly her main checking account), and yet am unable to reconcile the information on that account with the once a year expense summary she provides (albeit typically more like once every other year...). As an example, the summary shows SS income ... but I have never seen a SS deposit into the account. But what is troubling me most is that I have seen charges for things like hotel rooms in places where my sister vacations, and payments to organizations that are associated with my sister, not my mother. I would like to require her to provide actual receipts and full accounting of all the accounts she has under her control, to ensure that she is not using mom's money for herself?
Questions:
Other than petitioning the court for records, is there any other good approach to getting this information?
Has anyone had any experience trying to get a sibling to provide such info? Did it poison the family relationship forever (as I suspect this might)
No experience with this disturbing situation.

Is your sister the only one with a POA?

Who are the "us" you refer to?

How (and in what capacity) do you have access to your mother's one account?

What is your mother's current "capacity" to understand what is going on - financially and otherwise? In other words, could she give a POA to another person and/or revoke the POA to your sister. Note that the "grantor" can always, for any or no reason at all, terminate a POA. The issue in your case is whether your mother is "competent" to do so. I believe the standard for such POA competency is quite low. I might also consult and engage an experience eldercare attorney in your jurisdiction.

A common situation I have observed and heard of is that the caregivers, like your sister, feel (perhaps rightly or perhaps wrongly) they deserve the use of the parent's funds for such personal expenditures.

To me, your desires are perfectly reasonable - but the key issue is whether you have any "right" to get this information. My "non-lawyer" opinion is no - without it getting very messy. My long distance opinion is that when you (or 'us') press hard - it is very likely to poison the relationship.

I have known folks in your sister's situation (to a degree) who provided care to a mother, used the mother's funds to purchase things directly for the benefit of the mother - and yet, later after the mother died, her siblings wanted to subtract all of those funds from her inheritance.

What is not clear from your post is whether (and if so, how much) this sister actually is actually more involved in the direct care of your mother.

quantAndHold
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Re: How to ensure POA is acting in best interest of grantor?

Post by quantAndHold » Tue Jun 18, 2019 3:49 pm

I’m surprised you’re getting once a year summaries. Is there something in the POA that requires that? The POA I had for dad didn’t require anything like that, and I never produced one.

Anyway, if you think something is going on (and given what you’re seeing, I would be concerned), an elder law attorney is probably your next stop.

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FIREchief
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Re: How to ensure POA is acting in best interest of grantor?

Post by FIREchief » Tue Jun 18, 2019 3:55 pm

I once read that giving a person POA is the same as giving them the legal right to steal from you.
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.

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Re: How to ensure POA is acting in best interest of grantor?

Post by megabad » Tue Jun 18, 2019 3:57 pm

sandramjet wrote:
Tue Jun 18, 2019 3:19 pm
Other than petitioning the court for records, is there any other good approach to getting this information?
Has anyone had any experience trying to get a sibling to provide such info? Did it poison the family relationship forever (as I suspect this might)
Yes. This has happened to a distant relative. That relative is now in prison and it was rather easy to prove breach of fiduciary duty. Obviously there is no longer any relationship whatsoever with said person. Stealing from the elderly is generally frowned upon by most of the rest of my family especially if you are related. I would seek legal advice. If someone was stealing from my mother possibly endangering her future care, I would not concern myself with poisoning of any relationships with said person, just my opinion.

123
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Re: How to ensure POA is acting in best interest of grantor?

Post by 123 » Tue Jun 18, 2019 4:03 pm

You could ask your mother to add you as a signer on the checking account is case your sister is out of town or otherwise not available. With access to the account you could get online access to monitor transactions.

What would happen to the caregiver arrangements if something happened to your sister (i.e. accident/hospitalization)? The caregivers would still need to be paid. This seems to be too much of burden for one child to bear alone.

If your mother is not capable it may be time for someone to proceed with a formal filing for a conservatorship or guardianship which would involve some court oversight of financial activity.

You may need to initiate a complaint if you suspect elder (financial) abuse. In this case you need to protect your mother even though other family relationships may be at risk.
Last edited by 123 on Tue Jun 18, 2019 4:05 pm, edited 1 time in total.
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Re: How to ensure POA is acting in best interest of grantor?

Post by HomeStretch » Tue Jun 18, 2019 4:04 pm

Handling your mom’s financial matters and caretaker supervision probably requires a fair amount of your sister’s time if it all falls to her. It will require more time if she also has to provide a detailed accounting and receipts to you/other siblings.

That said, I think it’s fair for you/other siblings to want to be sure that your mom’s care and financial matters are handled appropriately. You have raised some financial red flags assuming your mom has not agreed to cover these expenses for your sister in appreciation of your sister’s help.

Do you/other siblings have a good relationship with your sister and mom? Is your mom competent?

If yes, how about a family meeting to discuss the care and finances, and to discuss how you/other siblings can share with your sister the work associated with your mom’s care and finances? Once you/other sibling are helping you can look further into the finances to see if your concern is warranted.

If no or if your sister is uncooperative, I am not sure what your options are other than seeking legal counsel for your mom’s sake.

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Re: How to ensure POA is acting in best interest of grantor?

Post by Doom&Gloom » Tue Jun 18, 2019 4:05 pm

quantAndHold wrote:
Tue Jun 18, 2019 3:49 pm
I’m surprised you’re getting once a year summaries. Is there something in the POA that requires that? The POA I had for dad didn’t require anything like that, and I never produced one.

Anyway, if you think something is going on (and given what you’re seeing, I would be concerned), an elder law attorney is probably your next stop.
+1
But probably going to be very risky to your relationships--if that matters to you.

DW has MIL's POA and handles all of her financial matters with no reports to anyone else. DW has a brother and sister--quite dysfunctional family. A couple of years ago MIL told DW that the sister was questioning MIL about what DW was spending money for. DW told SIL that MIL had told her that and that she was more than willing to hand over that entire responsibility to SIL. SIL declined the offer and denied that she had even broached the subject with MIL. Did I mention dysfunctional family?

Moral of that story: be careful what you ask for.

But if you are genuinely concerned and it is a significant amount, I would do something--and sooner rather than later.

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Re: How to ensure POA is acting in best interest of grantor?

Post by DesertDiva » Tue Jun 18, 2019 4:09 pm

FIREchief wrote:
Tue Jun 18, 2019 3:55 pm
I once read that giving a person POA is the same as giving them the legal right to steal from you.
As I understand it, a POA means that you have a fiduciary responsibility towards that person to act in their best interests.
Edit: Perhaps it doesn't mean you have a fiduciary responsibility (but you should, esp in the case of an older or incapacitated person).
Last edited by DesertDiva on Tue Jun 18, 2019 4:46 pm, edited 1 time in total.

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Re: How to ensure POA is acting in best interest of grantor?

Post by brandy » Tue Jun 18, 2019 4:20 pm

FIREchief wrote:
Tue Jun 18, 2019 3:55 pm
I once read that giving a person POA is the same as giving them the legal right to steal from you.
More than one banker has told me that, which is why I haven't set up a POA yet. AFAIK, people in my family are healthy and sentient all their lives, so hopefully that won't be a problem, and as one person said, I think the bar for competency is pretty low.

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Re: How to ensure POA is acting in best interest of grantor?

Post by Gill » Tue Jun 18, 2019 4:20 pm

sandramjet wrote:
Tue Jun 18, 2019 3:19 pm
Other than petitioning the court for records, is there any other good approach to getting this information?
Is there a court involved? Is this a POA or is it a guardianship of some sort? Normally a person acting under a POA has no duty to account to anyone.
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Re: How to ensure POA is acting in best interest of grantor?

Post by aspirit » Tue Jun 18, 2019 4:44 pm

FIREchief wrote:
Tue Jun 18, 2019 3:55 pm
I once read that giving a person POA is the same as giving them the legal right to steal from you.
Yes,.. yes it is.

And the legal systems no help at all.
Good luck!

PS, I've seen it more than once.
It's also been used by famlies to relieve elder individuals of their funds to qualify for medicaid nursing homes also.

Look back period,.. shmook back period.., I even notified the MA.states medicaid fraud dept. w/canceled checks over 50k.
:annoyed They shrug it off and do not pursue it.
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sandramjet
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Re: How to ensure POA is acting in best interest of grantor?

Post by sandramjet » Tue Jun 18, 2019 4:46 pm

Thanks for the inputs... here's a few more details...
Sister has a durable POA for healthcare and financial. It was set up perhaps 10 years ago. Sister does not manage the investment portfolio; there is a family financial planner who does that. We (4 children) are supposed to meet 1-2x a year to review situation with him, and the agreement was that at those meetings sister would review expenses and budgets so that planner could manage finances to provide enough income each year.
All siblings have offered to help with various tasks, but that help has generally been refused. Sister with POA says she can do it all, and won't do any if she has to share responsibilities.

The other 3 siblings have become increasingly concerned because of things that have occurred in past, such as POA putting herself on account as joint owner with mom, and apparently not disclosing all the accounts that mom had. (The planner agreed with us that was not needed, since she had POA.) But more recently, while sister suggests there is no money in budget for some items such as home maintenance, at the same time that I see charges of 2-5,000 on mom's account for expenses that appear to be vacation expenses for sister.

Mom has not been declared incompetent or had guardianship set up at least at this point. It is not clear if mom would be considered competent ... my guess is that it could go either way. Mom is getting forgetful, and I'm pretty sure some signs of dementia are beginning to show.

I have contacted an elder law attorney and will see what they say about going to court, but also looking for any ways of avoiding going down that path, both from a financial standpoint but also a relationship standpoint. Currently the relationship is very strained, but not totally broken.

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Re: How to ensure POA is acting in best interest of grantor?

Post by Trapper » Tue Jun 18, 2019 5:24 pm

Have you spoken to your Mom about some of these concerns? Specifically, does she cash her social security check, or where is it direct deposited? Mention your review of her accounts shows some large expenses and ask how she used the money. Can your Mom answer these questions? Maybe with a little prodding?
Although a POA allows the sister to act on your Mom’s behalf, it does not take any spending or decision making away from your Mom.
I would start with her to gauge how aware she is of her income and spending.
Going straight to the attorney may create needless friction.

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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 » Tue Jun 18, 2019 5:28 pm

sandramjet wrote:
Tue Jun 18, 2019 4:46 pm
Thanks for the inputs... here's a few more details...
Sister has a durable POA for healthcare and financial. It was set up perhaps 10 years ago. Sister does not manage the investment portfolio; there is a family financial planner who does that. We (4 children) are supposed to meet 1-2x a year to review situation with him, and the agreement was that at those meetings sister would review expenses and budgets so that planner could manage finances to provide enough income each year.
All siblings have offered to help with various tasks, but that help has generally been refused. Sister with POA says she can do it all, and won't do any if she has to share responsibilities.
The other 3 siblings have become increasingly concerned because of things that have occurred in past, such as POA putting herself on account as joint owner with mom, and apparently not disclosing all the accounts that mom had. (The planner agreed with us that was not needed, since she had POA.) But more recently, while sister suggests there is no money in budget for some items such as home maintenance, at the same time that I see charges of 2-5,000 on mom's account for expenses that appear to be vacation expenses for sister.
Mom has not been declared incompetent or had guardianship set up at least at this point. It is not clear if mom would be considered competent ... my guess is that it could go either way. Mom is getting forgetful, and I'm pretty sure some signs of dementia are beginning to show.

i have contacted an elder law attorney and will see what they say about going to court, but also looking for any ways of avoiding going down that path, both from a financial standpoint but also a relationship standpoint. Currently the relationship is very strained, but not totally broken.
1. IMO, not a good idea that just one granted POA - what happens is she is unavailable. Get added POAs ASAP

2, Check the details - BUT it may have been wrong for her to use the POA to add herself as joint owner.

3. The more you explain - the more I agree there is a problem - or more than one (funding sisters vacation) - but no money for home maintenance??

4. Going to court should be a last resort - messy and expensive

5. POAs, in general, allow a lot of flexibility in how they are used.

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Re: How to ensure POA is acting in best interest of grantor?

Post by chessknt » Tue Jun 18, 2019 6:15 pm

Refusing help from others is quite alarming. I would assume she is trying to hide something that would be obvious if others became more involved.

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Re: How to ensure POA is acting in best interest of grantor?

Post by FIREchief » Tue Jun 18, 2019 6:31 pm

dm200 wrote:
Tue Jun 18, 2019 5:28 pm

1. IMO, not a good idea that just one granted POA - what happens is she is unavailable. Get added POAs ASAP
I was of the understanding that there could only be a single acting POA under most/all state laws. Certainly there can be a successor named in the event that the primary is unable or unwilling to serve.
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.

skepticalobserver
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Re: How to ensure POA is acting in best interest of grantor?

Post by skepticalobserver » Tue Jun 18, 2019 6:34 pm

As what you’ve described might be financial elder abuse you should contact local law enforcement authority to intervene. They will undertake a thorough accounting.

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Re: How to ensure POA is acting in best interest of grantor?

Post by ResearchMed » Tue Jun 18, 2019 9:45 pm

skepticalobserver wrote:
Tue Jun 18, 2019 6:34 pm
As what you’ve described might be financial elder abuse you should contact local law enforcement authority to intervene. They will undertake a thorough accounting.
An Elder Affairs Office may be able to deal with "anonymous" complaints. If so, and if the "complaint" is specific enough for them to investigate, but also general enough that it "didn't have to come from you", that might be a starting point. In that case, they might double check anyone/everyone involved with Mother's care, and IF there is a problem, it would land on one person (presumably there is no one working "with" your sister).

Good luck.
And it IS appropriate for you to lodge a complaint if you think that not only is sister using the money for inappropriate reasons, but is *also* means there is not enough for Mother's *necessary* needs (be they personal or home maintenance, etc.).

Also, do you know what type of PoA this is? plain vanilla? Durable? Springing? The "type" would determine how the Power operates (or even if it is valid at all!) depending upon Mother's competency. So if you can, try to determine what Power sister really has, and how long it lasts. etc.

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dm200
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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 » Wed Jun 19, 2019 8:20 am

FIREchief wrote:
Tue Jun 18, 2019 6:31 pm
dm200 wrote:
Tue Jun 18, 2019 5:28 pm

1. IMO, not a good idea that just one granted POA - what happens is she is unavailable. Get added POAs ASAP
I was of the understanding that there could only be a single acting POA under most/all state laws. Certainly there can be a successor named in the event that the primary is unable or unwilling to serve.
That is certainly not my understanding - and I am in a business where accepting or not accepting POAs is involved. My wife and I have named multiple folks as POA. That should be easy to check out in your case. I would not depend on what your sister says! :oops:

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Re: How to ensure POA is acting in best interest of grantor?

Post by Sandtrap » Wed Jun 19, 2019 8:43 am

sandramjet wrote:
Tue Jun 18, 2019 3:19 pm
I have a sister who has durable power of attorney for our elderly mother, who is home bound with caregivers. However, she is unwilling to share any meaningful sort of information about mom's finances with us. I have access to one of the accounts that mom uses (supposedly her main checking account), and yet am unable to reconcile the information on that account with the once a year expense summary she provides (albeit typically more like once every other year...). As an example, the summary shows SS income ... but I have never seen a SS deposit into the account. But what is troubling me most is that I have seen charges for things like hotel rooms in places where my sister vacations, and payments to organizations that are associated with my sister, not my mother. I would like to require her to provide actual receipts and full accounting of all the accounts she has under her control, to ensure that she is not using mom's money for herself?

Questions:
1
Other than petitioning the court for records, is there any other good approach to getting this information?
2
Has anyone had any experience trying to get a sibling to provide such info?
3
Did it poison the family relationship forever (as I suspect this might)
1
Yes. If you cannot have a heart to heart talk with your sister, and especially if she is guarded and secretive, hire legal counsel (lawyer), "as soon as possible" to request transparency and accountability, and to go over your other options. If your sister does not produce records, then there may be grounds to go further based on that resistance.
2
Yes. Many times. Unfortunately. And, sadly.
3
Yes. That is to be expected. But, what is your greater concern, for your relationship with your sister, or your elderly mother's welfare?

Questions:
Is there already a trust in place and do you have a copy of it? Are you a beneficiary?
Are there other family members?
How long has your sister's POA been in place?

Hopefully, a forum attorney and legal counsel will chime in as they are more qualified to do so.

I am not an attorney.
The above thoughts based on multiple personal experience over decades.
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Re: How to ensure POA is acting in best interest of grantor?

Post by FIREchief » Wed Jun 19, 2019 1:24 pm

dm200 wrote:
Wed Jun 19, 2019 8:20 am
FIREchief wrote:
Tue Jun 18, 2019 6:31 pm
dm200 wrote:
Tue Jun 18, 2019 5:28 pm

1. IMO, not a good idea that just one granted POA - what happens is she is unavailable. Get added POAs ASAP
I was of the understanding that there could only be a single acting POA under most/all state laws. Certainly there can be a successor named in the event that the primary is unable or unwilling to serve.
That is certainly not my understanding - and I am in a business where accepting or not accepting POAs is involved. My wife and I have named multiple folks as POA. That should be easy to check out in your case. I would not depend on what your sister says! :oops:
I would not depend on what my sister says either! Did I suggest otherwise?? :confused (I was referring to what an experienced estate attorney in my state had told me)

Are you referring to a formal DPOA document within a comprehensive estate plan or are you referring to those POA forms issued by individual custodians that give others full access to financial accounts? I was referring to the former.
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.

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sandramjet
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Re: How to ensure POA is acting in best interest of grantor?

Post by sandramjet » Wed Jun 19, 2019 1:32 pm

FIREchief wrote:
Wed Jun 19, 2019 1:24 pm
Are you referring to a formal DPOA document within a comprehensive estate plan or are you referring to those POA forms issued by individual custodians that give others full access to financial accounts? I was referring to the former.
Sister has the former... DPOA as part of estate plan/documents. It does name a successor POA (one of my other siblings)

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Re: How to ensure POA is acting in best interest of grantor?

Post by Point » Wed Jun 19, 2019 1:50 pm

Been through this with dementia leading to Alzheimer’s. My brother would ask and be given money by mother. However, we did the books and trapped out most of it.

Be aware that banks don’t generally accept a POA, they have their own forms. If mother is incompetent, it may take a court order to change what’s in place. If she doesn’t have trust in place already, then you don’t have process in place for successor trustees. Again, legal work will be needed.

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Re: How to ensure POA is acting in best interest of grantor?

Post by WillRetire » Wed Jun 19, 2019 1:51 pm

Contacting an elder law attorney is about all you can do legally (and you have done that). Please share what happens next, as this is a situation many face.

Have you asked your sister directly about specific vacation expenses? If not, see what the attorney says about doing so (since you contacted one). This would have been my first approach: Ask sister a specific question about specific obvious charge(s) not belonging to your mother.

Something else... Is your mother competent to handle her own finances, with some assistance? If so, does your mother know what your sister is doing? How she is handling bills, for example? What she is doing with investments, taxes, etc? If your mother is capable and just needs assistance, then ask the attorney if your sister is permitted to take over all finances without disclosure to your mother.

DPOA should keep detailed records regardless, and be prepared to present an accounting to (a) your mother, and (b) to your mother's lawyer.
Not sure a DPOA is obligated to keep siblings informed, but seems like a good idea to keep them informed at a high level as long as there is no undue criticism or unfair questioning. Once an elder is incompetent, the person taking over has a lot to worry about and doesn't need criticism from all sides, assuming they are doing what they are supposed to.

ETA: I am not an attorney. This thread prompts me to read up on POAs. Found this:
https://www.nolo.com/legal-encyclopedia ... 29936.html
Last edited by WillRetire on Wed Jun 19, 2019 2:12 pm, edited 1 time in total.

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Re: How to ensure POA is acting in best interest of grantor?

Post by mptfan » Wed Jun 19, 2019 2:06 pm

Regarding the question about requiring your sister to provide an accounting to you, I'm not a specialist in this area of the law but my suspicion is that she is not obligated to give you an accounting.
Last edited by mptfan on Wed Jun 19, 2019 2:36 pm, edited 2 times in total.

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Re: How to ensure POA is acting in best interest of grantor?

Post by johnnyc321 » Wed Jun 19, 2019 2:20 pm

An agent under a POA is a fiduciary and must act with a fiduciary duty to the principal. But the agent only needs to account to the principal.

In my state (Florida), your only method of intervention is through a guardianship proceeding. You have no rights to know about your mother's assets simply because you are her child. If you were my client and you came to me with the information as described, we'd be headed to guardianship court immediately.

Many state prosecutors are looking more closely at these situations and bringing charges against people because these stories make headlines. In my county, a son got twenty years recently for exploiting his mother.

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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 » Wed Jun 19, 2019 3:17 pm

Point wrote:
Wed Jun 19, 2019 1:50 pm
Been through this with dementia leading to Alzheimer’s. My brother would ask and be given money by mother. However, we did the books and trapped out most of it.

Be aware that banks don’t generally accept a POA, they have their own forms. If mother is incompetent, it may take a court order to change what’s in place. If she doesn’t have trust in place already, then you don’t have process in place for successor trustees. Again, legal work will be needed.
In many (perhaps most) states banks and credit unions may not insist on their own forms. In Virginia, I know this is true because I am in this kind of business.

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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 » Wed Jun 19, 2019 3:19 pm

johnnyc321 wrote:
Wed Jun 19, 2019 2:20 pm
An agent under a POA is a fiduciary and must act with a fiduciary duty to the principal. But the agent only needs to account to the principal.

In my state (Florida), your only method of intervention is through a guardianship proceeding. You have no rights to know about your mother's assets simply because you are her child.
No lawyer here - but I agree.

As discussed, if mother is "competent" - designating different or added POAs could be an option.

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Re: How to ensure POA is acting in best interest of grantor?

Post by Nate79 » Wed Jun 19, 2019 4:22 pm

I would ask the sister to explain the expenses point blank. If she in any way doesn't have absolute proof they were for your mom I would bring to an elder law attorney.

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Re: How to ensure POA is acting in best interest of grantor?

Post by Sandtrap » Wed Jun 19, 2019 4:26 pm

dm200 wrote:
Wed Jun 19, 2019 3:19 pm
johnnyc321 wrote:
Wed Jun 19, 2019 2:20 pm
An agent under a POA is a fiduciary and must act with a fiduciary duty to the principal. But the agent only needs to account to the principal.

In my state (Florida), your only method of intervention is through a guardianship proceeding. You have no rights to know about your mother's assets simply because you are her child.
No lawyer here - but I agree.

As discussed, if mother is "competent" - designating different or added POAs could be an option.
+10000
Suggest doing this while you can talk to your mom and she is still in "control". At some point she may favor one over another, such as asking your sister if adding you to the POA is the "right thing to do". When your sister is empowered to that point, it gets very . . . . messy ugly. You can bring your mother's attorney to do this wherever your mother is so that she does not have to travel.

Been there.
j
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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 » Wed Jun 19, 2019 4:45 pm

dm200 wrote:
Wed Jun 19, 2019 3:17 pm
Point wrote:
Wed Jun 19, 2019 1:50 pm
Been through this with dementia leading to Alzheimer’s. My brother would ask and be given money by mother. However, we did the books and trapped out most of it.
Be aware that banks don’t generally accept a POA, they have their own forms. If mother is incompetent, it may take a court order to change what’s in place. If she doesn’t have trust in place already, then you don’t have process in place for successor trustees. Again, legal work will be needed.
In many (perhaps most) states banks and credit unions may not insist on their own forms. In Virginia, I know this is true because I am in this kind of business.
Here is a reference (for Virginia) - many other states have adopted similar laws and regulations -
http://www.peninsulaepc.org/assets/Coun ... %20Act.pdf

and another
https://law.lis.virginia.gov/vacode/tit ... 64.2-1604/

and yet another: https://www.robertslaw.org/summary-of-p ... -virginia/

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Re: How to ensure POA is acting in best interest of grantor?

Post by scorcher31 » Wed Jun 19, 2019 5:09 pm

Please correct me if I'm wrong, but a durable POA doesn't usually have the ability to do anything until you are declared to lack that capacity officially. If I'm 20 y/old and cog intact, I can declare my neighbor durable POA, but they can't actually do anything legally while I still can make decisions for myself. It's not a "license to steal". This is why people run into problems with banks. The bank may accept that someone is the POA but without proof the other person is incompetent it doesn't apply. This is why your sister had her name placed on the checking accounts as a co-owner so she can have easy access to the money regardless of the POA. If you mother still has capacity, she can technically revoke your sisters POA and appoint you ideally in front of an attorney or at least a notary. If your mother isn't cognitively intact, then it's going to be a legal battle/guardianship hearing route. Whether you change the POA or have to go the guardianship route you'd be better off to get the rest of your siblings on your side.

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Re: How to ensure POA is acting in best interest of grantor?

Post by Alan S. » Wed Jun 19, 2019 5:13 pm

"Best interest" is subjective. And like executors, the attorney in fact is typically a family member with little or no experience dealing with the challenges in effectively using the POA.

So the bar will have to set low since the parties are not professionals, and in many cases are not even qualified to deal with this responsibility. They will probably perform the job with less effectiveness than they manage their own lives, so that should become an indicator if they should be appointed or not.

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Re: How to ensure POA is acting in best interest of grantor?

Post by Trapper » Wed Jun 19, 2019 5:23 pm

Scorcher31, a DPOA is not in place of decision making authority, but can be described as an overlay, where both the person who grants the DPOA and the person who has DPOA has ability to make decisions.
Replacing decision making authority is granted by a court after determining incapacity.

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Re: How to ensure POA is acting in best interest of grantor?

Post by littlebird » Wed Jun 19, 2019 5:33 pm

scorcher31 wrote:
Wed Jun 19, 2019 5:09 pm
Please correct me if I'm wrong, but a durable POA doesn't usually have the ability to do anything until you are declared to lack that capacity officially.
O.K. You’re wrong. The type of POA you’re describing is actually call a “springing” POA. It springs -or more likely creaks- into action when certain criteria for declaring the grantor incompetent are met. Sometimes it is difficult to get these criteria met, as other people may be involved, such as doctors. The kind of POA that is being discussed here is a “durable” POA which is usable by the attorney-in-fact as soon as it’s s given to her. The “durable” part refers to the fact that it survives the disability of the grantor, which traditional POAs did not.

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Re: How to ensure POA is acting in best interest of grantor?

Post by scorcher31 » Wed Jun 19, 2019 5:45 pm

It's odd to me that a document like this exists, but i concede your totally right. Thanks you for the education. My parent's POA for medical and financial only go into effect when they are unable to make their own decisions and I figure it was just standard.

In the hospital, the medical poa/healthcare proxy/living will (I realize these are different entities) never applies until the patient either defers their decision making or is unable to make their own decisions. It's weird to me that the same protections aren't in place for peoples financials.

Regardless my end conclusion is still correct I believe. The mother can still revoke the POA if she has the cognitive ability to do so. If not, then guardianship hearing set off by an elder attorney, which can lead to a more formal investigation and ultimate resolution of the issue.

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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 » Wed Jun 19, 2019 5:58 pm

littlebird wrote:
Wed Jun 19, 2019 5:33 pm
scorcher31 wrote:
Wed Jun 19, 2019 5:09 pm
Please correct me if I'm wrong, but a durable POA doesn't usually have the ability to do anything until you are declared to lack that capacity officially.
O.K. You’re wrong. The type of POA you’re describing is actually call a “springing” POA. It springs -or more likely creaks- into action when certain criteria for declaring the grantor incompetent are met. Sometimes it is difficult to get these criteria met, as other people may be involved, such as doctors. The kind of POA that is being discussed here is a “durable” POA which is usable by the attorney-in-fact as soon as it’s s given to her. The “durable” part refers to the fact that it survives the disability of the grantor, which traditional POAs did not.
Yes. Many state law changes, though, such as in Virginia - as I cited - now assume POAs are "durable" unless they specifically state they are not.

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Re: How to ensure POA is acting in best interest of grantor?

Post by FIREchief » Wed Jun 19, 2019 5:59 pm

littlebird wrote:
Wed Jun 19, 2019 5:33 pm
The type of POA you’re describing is actually call a “springing” POA. It springs -or more likely creaks- into action when certain criteria for declaring the grantor incompetent are met.
Also, many posters suggest that a proper springing DPOA, prepared by an attorney, won't be honored so it is advisable to instead use a custodian's own forms to establish POA. Perhaps the biggest drawback of this is that such forms typically become immediately effective (thus giving the person named as POA full access to assets perhaps years or decades before the grantor becomes incapable of handling their own affairs). What could go wrong with this scenario? :oops: :twisted:

I would also add that those who are concerned about a financial custodian not honoring their independent DPOA can request that it be reviewed by the custodian's legal staff prior to them reaching the point of incapacitation. Of course, none of this is necessary for accounts owned by a living trust that names successor trustees in the event of incapacitation.
I am not a lawyer, accountant or financial advisor. Any advice or suggestions that I may provide shall be considered for entertainment purposes only.

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Re: How to ensure POA is acting in best interest of grantor?

Post by TN_Boy » Thu Jun 20, 2019 9:10 am

brandy wrote:
Tue Jun 18, 2019 4:20 pm
FIREchief wrote:
Tue Jun 18, 2019 3:55 pm
I once read that giving a person POA is the same as giving them the legal right to steal from you.
More than one banker has told me that, which is why I haven't set up a POA yet. AFAIK, people in my family are healthy and sentient all their lives, so hopefully that won't be a problem, and as one person said, I think the bar for competency is pretty low.
I have (durable) POA for a family member. I don't have to account to anyone. I inevitably wind up paying for some things for the family member myself. E.g at grocery store, they need X, paying with my CC -- and then reinbursing myself from their account monthly (I don't keep the receipts for more than a month, but I do have a spreadsheet which tracks all the expenses I pay for, and could come up with old CC statements if necessary).

It is a time-consuming task -- I"m paying all the bills, etc. I also do the taxes.

There is no intertwining of finances ... I never buy anything for me from their account, SS is deposited into their account, tax refunds deposited into their account etc etc. I would be entirely comfortable letting appropriate family (and for that matter law enforcement should there be an issue) look at her finances.

All reimbursed expenses are for things like buying groceries for them, buying stuff at the drugstore for them, etc. No hotel rooms in the Caribbean..... But yes, if my scruples were sufficiently lacking, the POA could be abused.

The POA was setup years ago, before it was needed. It has been a huge huge help now. The family member cannot fully manage their finances -- though they still make some purchases (not online) themselves. Were it a springing POA, I'm not sure what would be needed legally to trigger it. If you wait until you need a POA, it could create other problems.

As others have said, the POA is the starting document. For the family member's investments and bank accounts, I had to get separate per-institution documents. I'd assume with a springing POA, you'd need to do that at the time the POA went into effect, which could be a pain.

The way to start with the sister is surely something along the lines of "I'm a little worried about mom's finances, could we sit down on afternoon and go over them?" If she truly will not do that, there is an issue. As noted above, I'd be comfortable with a request at any time showing the records. I believe anyone with a POA should think like that -- if I had to turn over records showing how I was handling the money tomorrow would I sleep well tonight?

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Re: How to ensure POA is acting in best interest of grantor?

Post by dbr » Thu Jun 20, 2019 9:16 am

My experience with a POA for a family member was that when that family member began to qualify for financial assistance I stopped even the hint of any transactions that might reimburse me for expenses as the process of documenting to Social Services what the withdrawal was for became so onerous it wasn't worth it. I have never begrudged just helping out a family member. I have still been stuck with documenting other transactions such as tnhe basis for income from certain sources that said family member has. Social Services is generally more interested in how much income a person has than they are in where a person spends their money. Some of the stories verge on the unbelievable.

Being POA for a person of limited competence is a job from hell. I have done it twice. And that does not even get into health care POA which can result in a midnight phone call anytime something happens.

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Re: How to ensure POA is acting in best interest of grantor?

Post by mptfan » Thu Jun 20, 2019 9:19 am

TN_Boy wrote:
Thu Jun 20, 2019 9:10 am
The way to start with the sister is surely something along the lines of "I'm a little worried about mom's finances, could we sit down on afternoon and go over them?" If she truly will not do that, there is an issue.
The OP has already said that the sister is "unwilling to share any meaningful information about mom's finances" so it's reasonable to conclude that she has already asked and it doesn't seem that asking again is going to be productive.

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Re: How to ensure POA is acting in best interest of grantor?

Post by TN_Boy » Thu Jun 20, 2019 9:39 am

dbr wrote:
Thu Jun 20, 2019 9:16 am
My experience with a POA for a family member was that when that family member began to qualify for financial assistance I stopped even the hint of any transactions that might reimburse me for expenses as the process of documenting to Social Services what the withdrawal was for became so onerous it wasn't worth it. I have never begrudged just helping out a family member. I have still been stuck with documenting other transactions such as tnhe basis for income from certain sources that said family member has. Social Services is generally more interested in how much income a person has than they are in where a person spends their money. Some of the stories verge on the unbelievable.

Being POA for a person of limited competence is a job from hell. I have done it twice. And that does not even get into health care POA which can result in a midnight phone call anytime something happens.
Interesting point. In my situation, there is no financial assistance involved from government agencies. Were that the case, I'd probably take the route you took (and/or going to the extra trouble of writing a check off the family member account at the store rather than simply using my CC and then reimbursing myself).

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Re: How to ensure POA is acting in best interest of grantor?

Post by TN_Boy » Thu Jun 20, 2019 9:47 am

mptfan wrote:
Thu Jun 20, 2019 9:19 am
TN_Boy wrote:
Thu Jun 20, 2019 9:10 am
The way to start with the sister is surely something along the lines of "I'm a little worried about mom's finances, could we sit down on afternoon and go over them?" If she truly will not do that, there is an issue.
The OP has already said that the sister is "unwilling to share any meaningful information about mom's finances" so it's reasonable to conclude that she has already asked and it doesn't seem that asking again is going to be productive.
You are probably right, though I don't know how the original request was handled. It does matter how you ask.

But yes, there is either a misuse of funds problem and/or an overwhelmed POA not doing a good job record keeping. If there are other siblings, a family meeting might be called for.

To expand somewhat on my original note, I would NOT be happy at a family member demanding receipts and full accounting on a regular basis, if for no other reason than the time required to maintain such records. BUT as I noted before, I'd have zero issues showing people all the account records (checking, investment, credit card, tax returns....). And if those records are not pretty clean .. well, back to misuse of funds and/or bad record keeping.

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Re: How to ensure POA is acting in best interest of grantor?

Post by 8foot7 » Thu Jun 20, 2019 9:50 am

TN_Boy wrote:
Thu Jun 20, 2019 9:47 am

To expand somewhat on my original note, I would NOT be happy at a family member demanding receipts and full accounting on a regular basis, if for no other reason than the time required to maintain such records.
This. Family member is owed no duty at this point by mother or daughter to account for mother's finances.
My wife took over her mother's finances for a while, and while I'm sure she would have been happy to walk through things with her brother on a one-time basis or similar, she certainly would not have provided receipts or accountings upon demand. Their mother owed him nothing, my wife owed him noting, and frankly it was already none of his business. Their mother could have selected him to assist with finances but didn't.
If brother had said to my wife "I would like to require [you] to provide actual receipts and full accounting of all the accounts [you have] under [your] control" (OP's quote) she would have told him to go find ways of self-gratification.
Last edited by 8foot7 on Thu Jun 20, 2019 10:00 am, edited 1 time in total.

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Re: How to ensure POA is acting in best interest of grantor?

Post by 8foot7 » Thu Jun 20, 2019 9:59 am

Has OP actually asked mother/grantor about things? I read though and didn't see a reference except asking sister about the expenses. But what about asking mom since it's her money?

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Re: How to ensure POA is acting in best interest of grantor?

Post by TN_Boy » Thu Jun 20, 2019 10:05 am

8foot7 wrote:
Thu Jun 20, 2019 9:50 am
TN_Boy wrote:
Thu Jun 20, 2019 9:47 am

To expand somewhat on my original note, I would NOT be happy at a family member demanding receipts and full accounting on a regular basis, if for no other reason than the time required to maintain such records.
This. Family member is owed no duty at this point by mother or daughter to account for mother's finances.
My wife took over her mother's finances for a while, and while I'm sure she would have been happy to walk through things with her brother on a one-time basis or similar, she certainly would not have provided receipts or accountings upon demand. Their mother owed him nothing, my wife owed him noting, and frankly it was already none of his business. Their mother could have selected him to assist with finances but didn't.
But as I said, I'd be happy to show the *appropriate* family member(s) the records at any time.

Which brings up the obvious question, does the mother *want* all children to know the finance details? Is the mom competent to answer that question?

The fact that one person has POA only means that person is doing the work -- it doesn't mean other family members can't see the numbers.

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Re: How to ensure POA is acting in best interest of grantor?

Post by MathWizard » Thu Jun 20, 2019 11:09 am

8foot7 wrote:
Thu Jun 20, 2019 9:50 am
TN_Boy wrote:
Thu Jun 20, 2019 9:47 am

To expand somewhat on my original note, I would NOT be happy at a family member demanding receipts and full accounting on a regular basis, if for no other reason than the time required to maintain such records.
This. Family member is owed no duty at this point by mother or daughter to account for mother's finances.
My wife took over her mother's finances for a while, and while I'm sure she would have been happy to walk through things with her brother on a one-time basis or similar, she certainly would not have provided receipts or accountings upon demand. Their mother owed him nothing, my wife owed him noting, and frankly it was already none of his business. Their mother could have selected him to assist with finances but didn't.
If brother had said to my wife "I would like to require [you] to provide actual receipts and full accounting of all the accounts [you have] under [your] control" (OP's quote) she would have told him to go find ways of self-gratification.
I'd like to give a parent's perspective.

Q: How to ensure that the POA is acting in the grantor's best interests?
A: Have faith that the grantor (who in this case also raised both the sister and the OP
and should be the best judge of their abilities and character) knew full well what they were doing,
and do not substitute your judgement for the grantor's.

Op, your sister is stuck with the financial stuff. Be happy. You get to spend your time with your mother
visiting and being happy with her. Offer to help you sister with financial stuff, but do not force it, and support her
rather than stand in judgement. Who knows, it may even bring your closer.

Consider this: Who would take on a POA, with all the work it entails, if everything gets second-guessed?

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Re: How to ensure POA is acting in best interest of grantor?

Post by keepingitsimple » Thu Jun 20, 2019 12:19 pm

sandramjet wrote:
Tue Jun 18, 2019 4:46 pm
The other 3 siblings have become increasingly concerned because of things that have occurred in past, such as POA putting herself on account as joint owner with mom, and apparently not disclosing all the accounts that mom had. (The planner agreed with us that was not needed, since she had POA.) But more recently, while sister suggests there is no money in budget for some items such as home maintenance, at the same time that I see charges of 2-5,000 on mom's account for expenses that appear to be vacation expenses for sister.
Given the circumstances as you've described, I find it worrisome your sister has placed herself as a joint owner on your mother's bank account and, presumably, other undisclosed bank accounts. As a joint owner, it is my understanding she is considered part owner of all funds held within the account(s). In the event of your mother's passing, all accounts on which your sister is joint owner would then become the sole property of your sister. I may be incorrect, depending on the particulars of her joint ownership, but would think this worth looking into. Concerns of this nature are often best addressed sooner rather than later. Best of luck to you.

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