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

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

Post by dbr »

keepingitsimple wrote: 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.
I agree. I have been POA on accounts but never joint with the account owner. I would have considered this inappropriate.
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Re: How to ensure POA is acting in best interest of grantor?

Post by TN_Boy »

dbr wrote: Thu Jun 20, 2019 12:32 pm
keepingitsimple wrote: 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.
I agree. I have been POA on accounts but never joint with the account owner. I would have considered this inappropriate.
Yes, I am NOT the joint owner of any accounts I manage. I have authorization to do transactions, but they are not my accounts. When the family member leaves this world, management of the accounts then transfers to the executor. (There are beneficiaries for some accounts set up per family member wishes).
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dm200
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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 »

dbr wrote: Thu Jun 20, 2019 12:32 pm
keepingitsimple wrote: 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.
I agree. I have been POA on accounts but never joint with the account owner. I would have considered this inappropriate.
If the joint ownership was in place before the POA is being used , that seems just fine and normal. The problem becomes when the POA makes him/herself a joint owner.
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Re: How to ensure POA is acting in best interest of grantor?

Post by FBN2014 »

You have been unable to see whether social security checks have been deposited, suspicious expenses for vacations, and adding her name to your mom's accounts. These are called clues that your sister has abused her fiduciary duty to mom. File a complaint immediately with the police for elder abuse and hire an attorney immediately to file for guardianship. I would not worry about damaging sibling relationships. That ship has sailed and you'll only find out all the ugly details after your mom dies.
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aspirit
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Re: How to ensure POA is acting in best interest of grantor?

Post by aspirit »

keepingitsimple wrote: 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.
I second this. I'd project your mother becomes destitute via your sisters self-dealing and medicaid qualified unless you do something.
Think about what you've said, does it sound like your sister's self-dealing or not?
It does to me.
Is there any legal remedy?
Nope, not really.......just your intervention, or your mothers awakening to risks. I've seen it happen more than once.
Joint owner/signer on accounts has already given her control of that account.

A pals (the original executor) sibling stole every penny her father had and put him a medicaid facility because he was timid&trusting in his 90s while dealing the shock of his wife of 70yrs dying whilst my pal was medically in-firmed for <60 days. Did the state of MA do anything at all or even consider its nonsense look back period on his funds? Nope.

Law school, yes ...an Atty? No.
Action speaks louder than documents. Deal w/it now ..or its already over!

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

Post by dm200 »

I hope the OP gives us feedback how this worked out - or did not work out.
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Re: How to ensure POA is acting in best interest of grantor?

Post by bsteiner »

This is a difficult issue. A power of attorney can be a useful tool. It lets someone act for you. If you can't act for yourself, someone has to act for you, and with a power of attorney you get to pick the person. Guardianships are cumbersome, and you might not get to pick the guardian.

On the other hand, there's a risk that the agent misbehaves.

We've had cases where having an agent in place was helpful. We also had a case where someone gave his secretary a power of attorney and his executor believed that she misbehaved. After he died, the case was settled with the return of some of the assets to his estate.

We've also had cases where someone gave a power of attorney to one child and another child contested it, resulting in a guardianship.

Most people are willing to take the risk, given that they get to pick the agent(s).
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dm200
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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 »

What you (as the grantor) can also do is execute the POA document for someone to act for you, but do not give the document to that person right away.

Keep the document in a safe, but known to others, location. Then, in case the POA is really needed, it can be given to the person(s) to use.
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Re: How to ensure POA is acting in best interest of grantor?

Post by junior »

If your mother is of sound mind, I would think only your mother has the ability to do anything legally speaking.
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Re: How to ensure POA is acting in best interest of grantor?

Post by UpstateNY86 »

My family has been through pretty much the exact same situation. We should’ve acted while grandma was alive, but we didn’t. Contact an attorney ASAP and intervene. Does she have a lot of funds at risk?
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dm200
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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 »

To repeat an earlier point, depending on all the details, it may have been either improper or disallowed for the sister to add herself as joint owner on the mother's account using the POA. I suggest getting all the details, look at the POA and, perhaps, challenge this with the financial institution.

I am in this kind of business and in my current role, this would not be allowed.
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FIREchief
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Re: How to ensure POA is acting in best interest of grantor?

Post by FIREchief »

dm200 wrote: Fri Jun 21, 2019 10:04 am I suggest getting all the details, look at the POA and, perhaps, challenge this with the financial institution.
I'm guessing that the rest of the family has no access to the DPOA document.
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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FIREchief
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Re: How to ensure POA is acting in best interest of grantor?

Post by FIREchief »

dm200 wrote: Fri Jun 21, 2019 8:59 am What you (as the grantor) can also do is execute the POA document for someone to act for you, but do not give the document to that person right away.
Would you allow the nominee to at least read the POA document prior to them agreeing to serve? Assuming incapacitation (which I'm guessing is the most likely need for another individual to serve as POA), who would be the "keeper of the POA document," responsible for providing it to the designated POA at an appropriate time?
Last edited by FIREchief on Fri Jun 21, 2019 5:04 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 »

FIREchief wrote: Fri Jun 21, 2019 2:33 pm
dm200 wrote: Fri Jun 21, 2019 8:59 am What you (as the grantor) can also do is execute the POA document for someone to act for you, but do not give the document to that person right away.
Would you allow the nominee to at least read the POA document prior to them agreeing to serve? Assuming incapacitation (which I'm guessing is the most likely need another individual to serve as POA), who would be the "keeper of the POA document," responsible for providing it to the designated POA at an appropriate time?
I would not see any problem with this - depending on all the details.

Maybe the "keeper" could be a much younger family member, or no actual person as the keeper - but located in a known location, such as a fireproof safe or container at the grantor's home.
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sandramjet
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Re: How to ensure POA is acting in best interest of grantor?

Post by sandramjet »

Thanks for the inputs
Will update when I get info from lawyer
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dm200
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Re: How to ensure POA is acting in best interest of grantor?

Post by dm200 »

sandramjet wrote: Fri Jun 21, 2019 5:50 pm Thanks for the inputs
Will update when I get info from lawyer
Good Luck - heading into a "challenging" (for many reasons) situation!!
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sandramjet
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Re: How to ensure POA is acting in best interest of grantor?

Post by sandramjet »

Sorry this update has taken so long... lesson #1 is nothing seems to move fast in the legal world!

So here's current status... we did retain a lawyer, who agreed that a) we should have standing, and b) my sister did not appear to living up to her responsibilities (co-mingling funds, using Mom's money for personal items, not providing proper accounting per trust terms, etc).
Last October our lawyer sent a letter to sister ... sister's lawyer replied with a letter asking for more time to provide info. Then in December (after granting her a couple of extensions) sister finally replied with a letter to effect of "sorry, I don't have to do anything, and BTW Dad added me as trustee just before he died", but provided no proof or copy of revised trust, or evidence of paying back monies used for her personal use (she alleged that was just a mistake, and had been paid back).
We asked again for clear evidence of such, she refused to provide that. In April she sent a new inventory of accounts, which showed 4 less investment accounts than the year before, and 450K of funds missing. We finally got a court order this month for her to give us a full accounting by July 30, and go to mediation no later than Sep. 30. (I personally suspect those dates will be stretched out because she will drag her feet some more).

Needless to say, this has destroyed any relationship between us (not surprising). I'm ok with that; I just hope that the $$ that appear to be missing are really just because her record keeping is bad, not because she has actually taken the money. The other thing I have discovered is that this stuff costs lots of money...seems like all I do is write checks to the lawyer!
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Re: How to ensure POA is acting in best interest of grantor?

Post by FBN2014 »

sandramjet wrote: Thu Jun 25, 2020 1:53 pm Sorry this update has taken so long... lesson #1 is nothing seems to move fast in the legal world!

So here's current status... we did retain a lawyer, who agreed that a) we should have standing, and b) my sister did not appear to living up to her responsibilities (co-mingling funds, using Mom's money for personal items, not providing proper accounting per trust terms, etc).
Last October our lawyer sent a letter to sister ... sister's lawyer replied with a letter asking for more time to provide info. Then in December (after granting her a couple of extensions) sister finally replied with a letter to effect of "sorry, I don't have to do anything, and BTW Dad added me as trustee just before he died", but provided no proof or copy of revised trust, or evidence of paying back monies used for her personal use (she alleged that was just a mistake, and had been paid back).
We asked again for clear evidence of such, she refused to provide that. In April she sent a new inventory of accounts, which showed 4 less investment accounts than the year before, and 450K of funds missing. We finally got a court order this month for her to give us a full accounting by July 30, and go to mediation no later than Sep. 30. (I personally suspect those dates will be stretched out because she will drag her feet some more).

Needless to say, this has destroyed any relationship between us (not surprising). I'm ok with that; I just hope that the $$ that appear to be missing are really just because her record keeping is bad, not because she has actually taken the money. The other thing I have discovered is that this stuff costs lots of money...seems like all I do is write checks to the lawyer!
It's pretty hard to misplace 450K so I would doubt that is an error. Unless you are willing to file a theft charge and violation of fiduciary duty then what's the point of pursuing this. Just giving you food for thought.
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FIREchief
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Re: How to ensure POA is acting in best interest of grantor?

Post by FIREchief »

sandramjet wrote: Thu Jun 25, 2020 1:53 pm Sorry this update has taken so long... lesson #1 is nothing seems to move fast in the legal world!

So here's current status...
Thank you for the update. I had forgotten about this thread. You have my sympathy.

Not sure what lessons to take away from this. As a grantor, if assets are simple we can consider providing instructions to the person nominated to serve as DPOA to allow read only access to on-line accounts to the other interested parties. I doubt this would be legally binding, but in a situation with cooperative family members it would at least establish a baseline of expectations.
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8foot7
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Re: How to ensure POA is acting in best interest of grantor?

Post by 8foot7 »

OP, what does your mother think about all of this? I read through the whole thread again and (perhaps I missed it) there seems to be no mention of this.
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sandramjet
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Re: How to ensure POA is acting in best interest of grantor?

Post by sandramjet »

8foot7 wrote: Thu Jun 25, 2020 3:55 pm OP, what does your mother think about all of this? I read through the whole thread again and (perhaps I missed it) there seems to be no mention of this.
That is not clear. Our mother shows signs of dementia, and basically just agrees with whatever anyone who is with her says. (She has always been conflict adverse....) She has serious short term memory loss (If someone comes to visit one day, the next day she won't remember it). Although my sister denies it, I believe my mother would be found by the court to be legally incapable of managing her own affairs. When I have raised the issue with Mom, she will agree with me that my sister should be more transparent, etc. but is unwilling to confront sister on her own.
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Re: How to ensure POA is acting in best interest of grantor?

Post by Broken Man 1999 »

FIREchief wrote: Thu Jun 25, 2020 3:46 pm
sandramjet wrote: Thu Jun 25, 2020 1:53 pm Sorry this update has taken so long... lesson #1 is nothing seems to move fast in the legal world!

So here's current status...
Thank you for the update. I had forgotten about this thread. You have my sympathy.

Not sure what lessons to take away from this. As a grantor, if assets are simple we can consider providing instructions to the person nominated to serve as DPOA to allow read only access to on-line accounts to the other interested parties. I doubt this would be legally binding, but in a situation with cooperative family members it would at least establish a baseline of expectations.
One thing people might take away from this is for those setting up estate plans to be more transparent to EVERYONE affected, not just those taking over their finances/healthcare.

Openness can go a long way, in my opinion. Knowledge is power.

DW and I have had the talk with DDs as to what we would like to have happen, the documents they need to be able to assist us, and the roles they individually will have to play to accomplish what we desire. And, we also sought their acceptance, and received it from them. Whew, that would have been awkward had we not received their buy-in! :shock:

Why more people aren't more transparent with situations like this is beyond me. I do understand that openness might not be possible in dysfunctional families.

In those cases, probably a better person to nominate to make financial and medical decisions might be someone outside the family. Might be a safer pick for some needing help. Though, I might just be watching Investigation Discovery way too much!

Broken Man 1999
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Re: How to ensure POA is acting in best interest of grantor?

Post by Gnirk »

OP, I am so sorry you are going through this. I have been on both sides of this equation: I had an aunt (Aunt B) who was DPOA for her sister (Aunt A), who was quite wealthy, and Aunt B managed to syphon away and hide all of Aunt A's assets by the time she passed away (it was a short illness, with very little medical costs involved). We believe Aunt B destroyed Aunt A's will. Long story short, part of Aunt B's family was in on it. By the time the estate was to be probated, there was no estate. (Facts, not fiction).

On the other hand, I was my mother's DPOA. She had Alzheimer's, so for 10 years I managed her finances and medical care. I kept a monthly Excel spreadsheet detailing all income, and all expenses. Kept all receipts, and made the information available to my only sibling at any time he wanted to see it. I was as transparent as possible.

I would suggest that you ask/demand that your sister do the same. If she doesn't, and you have any proof of financial abuse, then report her to the appropriate authorities because it is a form of elder abuse. She should never use any of your mother's assets for herself. If she incurs expenses on your mother's behalf, then she does have the right to be reimbursed for those expenses, and she should have receipts for the expenses, and documentation for the reimbursements.
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Re: How to ensure POA is acting in best interest of grantor?

Post by celia »

OP, you know you (or even any of us) can call up the mom’s county department of social services to report financial (or any other kind of) elder abuse. They will investigate and your name can remain anonymous. I believe if they find anything, it is up to them to take appropriate action. No lawyer is needed.

You will have to give them enough information so they have an idea of what to look for. They may even find that your mom is incompetant which might lead to her being better protected.

Think of the elders out there who have no relatives (at least in the area). Who looks out for them? If no-one specifically has been designated, the county or the courts can intervene for them. Usually we would want to keep the government out of our personal lives like this. But if someone notices an elderly neighbor who needs help when they live alone, that observer should at least call in so a welfare check can be done.
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