power of attorney

[kita]

Must a person who has power of attorney act in the best interests of the granter to the best of their ability?

Or if someone has been granted power of attorney can they clean out your accounts for no other reason than they can?

[Palooka]

Must a person who has power of attorney act in the best interests of the granter to the best of their ability?

Or if someone has been granted power of attorney can they clean out your accounts for no other reason than they can?

Sometimes they do and sometimes they don't. I've known a few to clean out their bank for selfish interest. It depends. I would hope the other family would know if they did something dishonest.

My dh uncle is the Power of Attorney of his Grandma. He makes sure that the family knows everything before dealing with her money. She is 95.

Do you have a story?

[khaski]

I agree with above poster- I think they -could-, but if the family
's paying attention they might have to answer for it in court....and if someone passed away they would have to settle the estate before taking any $ as creditors would come a'knockin.

I guess the real ? is- why would one choose a PoA they think even -might- take their $?

[Ssindi]

When we had POA for MIL,we had to fill out a form for Social Security every now and then to show where her money was spent.
POA's should be chosen carefully. Unfortunately, sometimes family members are not always best for the job.

[Saule]

When you have the POA, you can pretty much do whatever you want. If a person is incapacitated mentally, then the POA is no longer valid, unless it is a "durable POA" . A durable POA becomes effective only when a disability triggers the need for it. If there is a disability that prevents the person from making decisions on their own behalf, and the uncle does not have a durable POA, you may need to go to court to have a guardian appointed by the court.

Many states have offices for the aged that can help you sort this out.

One of my uncles had POA for his sister, who was not mentally incapacitated, but was just uninterested. We used to review the finances a couple times of year, uncle insisted upon it, to make sure everyone was comfortable with what was being done.

There was a story in the paper just yesterday how a son stole his father's house, by having the dad sign a trust agreement (he thought he was signing a will) that made the son the trustee (essentially the same powers as a POA). Son sold dad's house out from under him, moved him into a crappy property he owned and made dad pay rent to him, used the proceeds from dad's house to build himself a vacation house!

If you are naming people as agents or appointing them to be agents under a durable POA, you really need know who you are appointing.

In many states the guardian for financial purposes must be a different person than the guardian of the person (who can make, for example, medical decisions).

[Lora88]

POA gives the person broad powers with money and property I was my Dads and now I am my Moms. I would be very careful who I gave a poa too. That person can literally take everything

[kita]

So if he is declared mentally incompetent, he must have a guardian not a POA? Because as I understand it, a guardian most have some justification for what he does.
Okay, here is the background.
'James' has a few mental issues. He has been in a state hospital for a time, in a half-way house and has been living independantly for at least five years.
Financially, he has a VA pension based on mental disablity and a small trust fund rumored to be about $25,000 from his parents. His sister had been doling out proceeds from the trust fund until a while back when she sent all of it.
My brother knows James from church. James frequented several churches whenever they had 'free' meals. He would latch on to someone talk at about 150% speed throughout the whole meal about a few subjects. Calories was one (even though he was very thin) and another was his vandal.
His vandal was resposible for many things like putting holes in his pants pockets (while he slept in them), souring his milk that was only ten days past the exp. date and putting spores on his day-old-bread so that mold would grow after only ten days in the cupboard.
There were less funny things like his computer crashing and his bike tires developing leaks. All things people here attribute to Murphy.
But James decided that the vandal was his across the stairs neighbor. Previously he had decided that it was the downstairs neighbor so we thought he wouldn't take it any further than we thought it had gone before. Verbally telling them to stay 12 feet away and loud purging screams at 2 am ("which are not longer than 5 minutes so they don't violate city ordinances").
Apparently, James decided that if the neighbor came within 15 feet of him, he was threatening James' life. The next time that happened (the doors are about 8 feet apart), James showed a knife (we think) and made more threats. I am pretty sure he did at least that. The neighbor did what any 6' 6" works-out-in-a-gym red-blooded American would do when an off-balanced man with a knife is threatening you in front of your children.
He called the cops. So no-one is injured. James is in jail. The lawyer is talking a mental defect defense but that hasn't come about yet.
James says he cannot post bail. (His choice if he can...no one at this point really wants him walking the streets esp. unmedicated)
So, James wrote and called my brother to help him empty his apartment, salvage some things ( al long list, most of which we were able to do), etc.. James offered to pay us (we haven't gotten any money yet) and suggested that his old friend Will would help him.
It was our understanding that Will would have access to James' money ("Will will give you $9 an hour out of my accounts").
When Will first showed up at the apartment to let us in and give us keys he said he had already gotten a load of tools and was done. Will had helped James the last time he was committed and didn't believe that James was comg out again. (James is 67). Will was tired,said that he still had stuff that James had asked him to store from before and we could do what we wanted but he was done.
While I didn't really respect Will as a friend I understood what he was saying and mentally put will done as "not to be counted on".
On the last day of the sale Will came by to look through James' mail. (James had mail up to five years old and we tried to sort it into "could be important" and "should be shredded" piles) After going through several stacks for about 20 minutes we asked him what he wanted.
He said "I have a key that looks like it is a safety deposit key but I don't know the bank." Red flags went up for me. James can list asnything off the top of his head. He must have had twenty locks, some combination some regular, and we were able to unlock all but three with instructions from James. But since Will was "the trusted friend for the last decade", I kept my mouth shut. Okay, I did ask here about the likelihood that Will could get into the box without permission. I felt like, if James gave permission then all bets are off. It is on his head.
So James called again ...umm Monday, asking my brother to pick up his property from jail (the stuff he had on him at the arrest). James is concerned that he is overdrawn on his bank account becasue of automatic withdrawels. (he has been in jail since March) He wants my brother to have POA so that he can move money from the money market to the checking account. James feels that this needs to be done immediately because he was to have a medical test done and then be transferred to a state mental hospital for observation for 30 days.
After much finagling of my car and my responsiblities, my brother drives 45 minutes to the jail to claim James' property (including his wallet). Only after an hour they tell him it has already been claimed. Brother didn't think to ask when.
So, I don't know if Will has the property, including the bank cards and possibly a POA or maybe someone else. I've realized while writing this that we need to find out how James knows that his account is overdrawn. Maybe Will has taken care of it already and James is just worrying (his greatest skill).
My concern is that Will has cleaned out the accounts. He could argue "I'm making sure that James is destitute so he will get state aid and I will return it when/if he gets out" Maybe I am paranoid.
I'm not sure what I can do. My brother is trying to take notes during the five-minute allowed calls but my brother is not computer savvy and James talks straight through and doesn't answer questions well.
That is the short version...
Any suggestions?

[Saule]

Get your brother on the phone with the bank and have him tell the bank to block his accounts. Or if he is willing to say - my sister is helping me out, I authorize you to talk to her, that would be enough. (I used to do this for my dad on some things). Take him down and get all accounts closed and transferred, to the extent there is anything. If you think the friend has taken property, make a police report. There really is no other solution.

I think he needs a guardian, since there is no durable POA, and I think you will have to go to court. You can be appointed the guardian, but if no one in the family wants to do this, the court will appoint a public guardian. I would hesitate to think that he can give a valid POA - an attorney who specializes in family law would be a good person to consult with.

The guardian can be an unrelated person - my aunt;s caretaker was approved by the court as guardian, and we were delighted. Aunt decided she is not related to any of us, gets hysterical (medically) when we are near, and the caretaker was a wonderful woman. We are very lucky she was willing to take on my aunt, who is very difficult, as well as mentally not well.

[kita]

My brother is not James. I'm not sure that you understood that from your post. I don'tthink family is interested in being guardian. I have thought about jsut trying to update the bank on the status of James and try to make them aware of Will. If nothing else to ensure that he has a POA and not just the bank cards.
And while James has stated that he wanted my brother to be POA, we don't have that paper in hand.

[Saule]

I'm sorry, Kita, I did not keep the players straight! Hopefully things will work out, these situations are always very difficult.

[kita]

I keep trying to update this thread but get discouraged becasue I don't have enough time. Okay...let me put the coffee on...
Okay, better.
So, Will shows up at church on Saturday. He is crowing that he has "NEWS". He won't say anythng until my brother and I are both there. Well, most of the news we knew. Except that James is delaying the medical proceedure and is "gumming up the works"..ie, the plans for him to go to the state hospital for the evaluation.
The other big news was that Will has the BANK CARDS and the PIN numbers!!!
Will: "James wants all of his accounts zeroed out."
(Me looking confused.)
Will:"Uh, you know his credit card accounts. Otherwise he is looking at at least 48 months of late fees"
Me: "That's true"

Also this exchange happened:

Will: "I told James that I won't pay the cards until he agrees to the colonoscopy. James said that the two things aren't related; 'they are two different things' "
Me: "Well they are"
Will: "I told him they are related now because he is just trying to gum up the works"

And then the more personally relevent:

Will: "James told me to pay you $300 for the apartment cleaning and yard sales and I told him $100 a year for 10 years. But he said you should get $300 anyway."
My brother looks confused. I remind him in an aside that James and Bill have been friends for 10 years.
I try to delicately say that when James has mentioned payment that he has said amounts over $600. (Once or twice it has been $900). Brother says we don't really care about the money.

Will restates that James told him $300 and he told him $100 a year for 10 years.

My brother mentions in an aside that we still have the yard sale money...just over $500... so that may be where the difference in numbers comes from although no one mentioned it.

Will suggests that we meet at the church picnic on Sunday to do the money exchange. After arranging for my car (because I work on Sunday), it is agreed.

So Saturday night I make up a receipt for the money and ask my brother to get Will to sign it.
Brother is late to picnic, Will is gone. Later Will calls Brother at home and they agree to meet at our communtiy garden.
At the garden, neither one can find a pen. Will says he has one in the car but "we don't need a receipt, I'll just write your name on the withdrawal slip".

When my brother was telling me about this,my heart was sinking. I asked him...
"Did you see the withdrawal slip?"
My brother said "No, and it wasn't until I got back in the car that I realized that this could really ...come back to bite me because he could have gotten any amount of money and said he gave it to us."

So, if that penny has finally dropped in my brother's head, some good has come out of this.

I am going to write a lovely thank-you note for James for the money and (what is usually rude) actually mention the amount. I will also tell him that everyone who helped with the sale and moving of stuff has agreed to take payment in stuff that was unsold at the sale. I'll try to let him know where the stuff is that he asked us to save. (MOst of it is in my storage)
My brother and I have tried to be very above board in this but my concern is in several areas:

Ethically, I think we are doing the best we can. Since my brother and I are both single (and my brother has some mental health issues) we feel for James having to lean on friends instead of family.

Our friendship with James, Honestly, I couldn't care less. This has been a huge pain. My brother doesn't have a car and James' apartment is over 15 miles away. I have weird work hours which change so it has been a scheduling nightmare. Clearly, this is not an emotionally rewarding relationship now and never has been. And I do think that it would be awful to be on the outs with James.

Legally, I think we are in the clear. Will cannot prove how much he gave us so any questions about what he did with the money and how much it is fall on his head. Beyond that it is he said/she/he said.

Honestly we don't care about the money. We all took unsold stuff after two two-day yard sales. (The rest was donated to the VA). My brother had refused to look up Will to ask for money even though James asked him.

BUT...
I don't want James to be ripped off. Hence the tacky note to James. I don't know what legal issues arise since James gave out the cards and PIN numbers. I don't know that James can complain that he didn't follow instructions if he gave Will unfettered access to the accounts. I do know that I don't want my or my brother's names to be used as patsey's (sp?)to drain the accounts.

Oh, and Will says he doesn't have POA. I don't know if we want to get this involved but if my brother got it, he could have the bank cancel the cards, right?

And we finally have the name of James' lawyer so I may try to contact her.

Any suggestions???

[monkeywrangler71]

Call the lawyer and the sister if you know how to reach her, and tell them that Will has James' cards and PINs. If the sister used to look after his accounts she is probably the one with POA. Don't just assume that his family doesn't want to help unless you've actually spoken to them.

You can also tell the bank that he is in jail and that someone else is using his account. They might freeze the account and make Will prove his access is legitimate.