What if my mother is being taken advantage of by someone with her POA?

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What if my mother is being taken advantage of by someone with her POA?

My stepbrother has POA over my mother. He has convinced her to sell her house and everything else she owns while she is in an unlicensed nursing home. I have a real suspicion that he is draining her bank accounts and is making off with a lot of her money. I cannot get her to revoke the POA and just wondering if there is any way to call for an audit of what he is doing?

Asked on July 24, 2017 under Estate Planning, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Is your mother still mentally competent? If she is, then only she can take action against her attorney-in-fact or agent (those are the terms for the person given authority by the POA; i.e. your stepbrother). Even if you believe that she is being taken advantage of, if she is mentally competent, you can't intervene; a mentally competent adult can choose to turn a blind eye to what people are doing to or for her, and can let themselves be taken advantage of.
If you believe she is not mentally competent and is being taken advantage of, you can bring a legal action in family court to have yourself appointed her legal guardian. You would need medical evidence (e.g. doctor testimony and test results) showing her incompetence and also show that your stepbrother is not acting in her interest, which is why a different guardian needs to be appointed.
If you are appointed guardian, not only can you then revoke the POA for her and cut off his access to her accounts and ability to make legal decisons for her, but you could also bring an action for an "accounting" in chancery court (a part or division of county court) to force him to "account" for his actions as agent--and if he violated his fiduciary duty to your mother by acting in his own, not her interest, he can be forced to repay amounts he took from her.
If you wish to consider this option, which an be complicated and expensive to pursue, consult with an elder law attorney.


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