My mother has dementia & my father died 12 mths ago. My father died 14 months ago and my sister was on my parents checking account. She never contacted his pension with a death certificate and she has been collecting his pension for the last 14 months signing his name on the checks sent to my parent's address. I found out last month, finally putting my mom in a nursing home and becoming her power of attorney. My mother has last stages of dementia and has no recollection of anything. There is no money left in the checking account, sister took everything. Now the pension company of course wants the pension money returned that was sent to my father/mother in the last 14 months. What should I do since I am my mother's power of attorney. My sister will not payback the pension money said she needed for care for my mom. Help I do not want to be responsible for over $5,000 in repayment since I had no clue this was happening.
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1. Her being a signatory on your father's account does not entitle her to help herself to his cash. The money she emptied out of it does not belong to her. Not to beat about the bush, that's theft.
2. The pension company will most certainly want the overpayment repaid, and they will doggedly pursue the money until they get it. Get it, that is, from your sister - not from you. If you can show that neither you nor your mother at any time took receipt of these payments you should be in the clear. If I were you I would get the information together, call the pension company, and give them whatever information they need to contact your sister. Her problem.
In our case, my mother's pension provider continued to pay into her account in spite of being told of her death and in spite of repeated requests to them to stop it. We still had to give it back, which was fine - what wasn't fine was that I got a letter from them demanding immediate repayment of the total, when it had never been anything to do with me. A simple phone call - I say simple, it took half an hour and a lot of tedious security questions - sorted it out. Hope it does for you too.
Annie, how old is your sister, and does she have any emotional or mental issues? I recalled that an element of a criminal case can be whether the individual had the mens rea, or wherewithal/knowledge, etc., to know that he/she was committing a crime. I'm wondering if your sister even knew if signing her father's name was illegal?
You wrote that your mother is in late staged dementia; you became aware of this situation about a month ago when you were named as proxy in your mother's DPOA. Was your mother even cognizant at that time to execute a legal document? If she had been diagnosed as such, if that was documented, and if she didn't have the legal capacity to execute legal documents, I'm not sure your DPOA is really effective.
Was your sister named under a previous DPOA? If so, she would likely have had authority to sign the checks and it wouldn't have been forgery. Is it also possible your mother gave her verbal permission to sign, not realizing it wasn't legal? And your mother doesn't remember now?
In addition, you stated in your original post that your father died 12 months ago, then 14 months ago. I'm wondering if there are any other facts that need to be clarified, such as the possibility that your sister was proxy under a former DPOA created by both your parents, or just your father, and that she in fact was acting with legal authority when she signed the checks.
Just as importantly, what does your sister have to say about the situation? Did she admit to cashing the checks w/o proper legal authorization?
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Angel
I recall this was the situation with my sister's state pension fund. I had to do some research and read the voluminous, difficult to read documents as well as get information from the state to figure out which pension option she had chosen.
It could actually have been that kind of situation, which I hope it was, for sister's sake.
When you write your letter, be careful to draw any conclusions; just state the facts, but I would also ask for copies of ALL executed documents relating to your father's pension.
Advise them as well that you only recently were appointed proxy under the DPOA and prior to that time had no knowledge of the theft (assuming that's true).
If you did have knowledge before you gained access to the records, you could be considered an accessory, possibly after the fact.
I'm curious - how did the pension holder find out - did you notify them?
The company managing the pension will get records from the bank with copies of the endorsement to confirm that it was your sister's signature, then contact her demanding repayment.
If she can't, or refuses, they may sue, depending on whether she has assets or is judgment proof (they could attach her assets and/or place a lien on real property she owns), but they probably also will notify local police for prosecution.
Proving fraud was committed relies an element of "intent", i.e., the person must have known he or she was committing fraud and intended to do so. Given that she presumably would have known your father had died, that element is in existence.
What the penalties would be I don't know; it may depend on the amount of total theft whether it's a misdemeanor or felony.
Who was the executor of your Dad's estate? That is the person who should have reported his death to the insurance company.