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Power of attorney documentation can help elderly adults give the power to care for their medical and financial needs to another trusted individual. Should their health decline to the point that they cannot make those decisions for themselves, the agent named in a power of attorney will step in and handle those needs. Often a power of attorney is an adult child who lives near the individual and can handle these affairs, but sometimes this can create tension between the adult siblings.
If you feel that a sibling is abusing power of attorney, you do have options. Here is a closer look at what you can do if this occurs.
If a parent names one child as power of attorney and not the others, you may have feelings of distrust and frustration. You need to understand the legal implications of this setup.
First, your parent has the right to name whomever they wish, and they do not have to tell you whom they choose. Second, the agent does not have the legal obligation to provide information about the parent to you. Thus, withholding information is not an abuse of this power, even if it creates frustration.
That said, the agent serving as a financial power of attorney does not have the right to prevent you from seeing your parent. In the case of medical power of attorney, the agent can prevent access but only for the sake of protecting the parent’s health.
Outside of those rules, the agent has to work in the parent’s best interests, and if they are not, it may be considered abusive behavior. This is when you need to pursue additional options.
A power of attorney document gives the agent the right to legally sign documents, make healthcare decisions, and take care of financial transactions on behalf of your parent. Under the law, they are required to act in the best interests of your parent. They are not allowed to do specific things, including:
The most common causes of abuse with power of attorney involve finances. Since the agent has the right to sign checks and pay bills, unscrupulous individuals sometimes take money for themselves. If you suspect this is happening, you may want to consider going to court to override power of attorney and protect your parent.
As long as your parent can make decisions for themselves, they can revoke or change the power of attorney. However, once they become incapacitated, they no longer have that right. At that point, only the courts can require a change.
Before going to court, start by talking to your parent. If they are still well enough to make decisions, they can revoke the power of attorney. If that does not work, consider enlisting the help of an attorney and having your attorney approach your sibling, asking them to step down as agent. If that happens, the power of attorney document will have an alternate agent that will step in.
If you suspect that the agent is taking advantage of your parent and these steps do not work, you need to challenge the power of attorney in court. First, you will need evidence that the agent is negligent or abusive. Your lawyer will help you provide this evidence, and the judge will decide if it is sufficient to ask for the agent’s removal.
In addition, you can file a complaint against your sibling with the state’s department of adult protected services. This action can help get protection in place to stop the abuse and protect your parent.
If the judge finds that your sibling has been abusing your parent as the power of attorney, you can prosecute that sibling for things like fraud, embezzlement, exploitation, and theft. These are serious crimes that can lead to imprisonment and steep fines. State laws will dictate how much those fines will be, but these are serious consequences that have a far-reaching impact.
Because of these severe consequences, the courts do not take these accusations lightly. You will need ample evidence of fraud or abuse to start this type of case. Always work with a legal team that is well-versed in elder law and elder abuse scenarios. This will ensure you can build a solid case to protect your parent against these serious crimes.
If you need professional legal assistance in dealing with POA abuse, contact our law firm for a consultation.