What happens if the person w/ POA is clearly "breaking their fiduciary duty by not acting in the principal's best interest?"

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Lostboy Asked July 2018

What happens if the person w/ POA is clearly "breaking their fiduciary duty by not acting in the principal's best interest?"

One of my sisters was given POA for my mom years ago. This sister is a complete mess /w substance abuse problems and an eating disorder of her own and, as such, has done nothing to impede a live in friend from stealing money from my mother. Does the principal (mom) have to make the decision to revoke POA from her or under theses circumstances, can a court do it?

Elder Law Power of Attorney (POA) Siblings

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score 2 · Answer 1

No, Mom is not capable of giving consent. You will need to go for guardianship.

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score 2 · Answer 2

First, is your mom legally competent? If so she has the right to make stupid decisions. She is the one to revoke or give POA. Only if she is declared incompetent can a court appoint guardian/conservator. You could contact APS with a demand that they investigate financial abuse. But if the investigator interviews mom and she says "It's fine with me if they have the money - I'm willing to give it to them" ....Then what? Might scare the perpetrators, but it's Mom's money and she can do what she wants with it.

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My sibs and father dropped the ball when they had the opportunity to use the court to appoint a guardian. The sibs, knowing mom is a terrible mess, refused to testify or appear in court because it was too hard. So we end up with the bigger mess we have now.

I wonder if you can use what is clearly poor decision making or changing support for spending after the fact, as evidence of lack of competence. A pattern of stupid decisions should be able to demonstrate incompetence.

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score 1 · Answer 3

I just talked to a lawyer about this yesterday. My brother is sole POA, trustee, etc and has been stealing from our mom, verbally abusing her, abandoning her, etc for many years. My mom defers to him and won't listen to a word against him. The lawyer said she would have to want to remove him, press charges or whatever. I know my mom, the narcissist, would never say a word against her Golden Boy. The lawyer also said that it might even make things worse, because if we successful got my brother removed, he would likely turn around and fight back. I guess at some point we have to just let our parents lie in the beds they continue to make every day.

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I don't know if this makes my case any worse than yours but the person ripping my mom off is some drunk barfly veteran she brought home from the VA bar because she felt sorry for him. Now he and his 'companion' (another woman) appear to be bilking my mother out of tens of thousands of dollars with the potential pot well over a million if he plays his cards right.

This guy has no chip in the game as far as axes to grind or bad family blood etc ........ He just fell into a great opportunity for a con man. If this was one sister v another, I wouldn't be AS peeved but this is a real criminal activity being protected under the guise of protecting elderly people's right to make their own decisions when they're compromised.

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score 0 · Answer 4

If your mom is still competent AND WILLING to change the POA it’s simple to do. If not, you will need to file for guardianship. Are you willing to take care of mom?
You must have the right attorney. Here is a thread where a similar problem exists. This sibling seems unable to take action. I suspect your mother is conflicted on what to do. It’s very hard to take action against your child.
But yes your mom if competent can change her POA. You could turn sister in to APS and/or file for guardianship if your mom is no longer competent to make her own decisions.
https://www.agingcare.com/questions/secondary-poa-is-acting-before-1st-poa-and-stealing-how-can-we-stop-the-abuse-440502.htm

You can do a search of your own with sibling stealing. You’ll see quiet a few threads with this problem.

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This isn't a sibling stealing from my mom. It's some indigent loser veteran she picked up at a VA bar and brought home.

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score 1 · Answer 5

I would talk to an elder law attorney. If the POA is invoked, I assume that means your mom is unable to make medical or financial decisions for herself (depending on the kind of POA - medical or financial or both). Even if she were to sign to revoke it, if she is not mentally competent, it wouldn't be valid. An good attorney can help you navigate this situation. It may be that you will need to seek guardianship.

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Thanks ---- I do think that perhaps seeking guardianship might be the best option although if we lose that case, my mom could be coerced into making the guy that's stealing from her as her POA.

I hate attorneys but they may be a necessary evil in this case.

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What happens if the person w/ POA is clearly "breaking their fiduciary duty by not acting in the principal's best interest?"

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