How to Handle a Sibling Abusing Power of Attorney
Can two siblings have power of attorney? If so, what happens when there is a power of attorney sibling conflict? Can a sibling contest a power of attorney?
Learn how to handle abuse of power of attorney by a sibling from this article by Keystone Law Group.
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Is a sister with power of attorney over your parent refusing to share information about your parent’s financial situation? Has she suddenly started to purchase luxury items for herself?
If so, it’s possible your sister is abusing her power of attorney.
Siblings may be given power of attorney over another family member because it’s assumed they won’t abuse it; however, as a probate firm, we handle cases involving siblings abusing power of attorney every day.
While a power of attorney between siblings and/or other family members can be beneficial for many reasons, it also has the potential to lead strained relationships, particularly if abuse is suspected or certain people are left out of the arrangement.
By learning what your power of attorney responsibilities to siblings and other family members are, you can try to avoid conflict. But keep in mind that with power of attorney, sibling conflicts are often unavoidable. While a sibling rivalry over power of attorney is the last thing anyone wants, it’s important to understand how to handle this sort of situation in the event it comes up.
Can a sibling contest a power of attorney? What happens if two siblings have power of attorney over a family member and can’t agree on a course of action? Discover the answers to all your sibling power of attorney questions, as well as how a POA attorney can help, from this guide by Keystone Law.
What Is a Power of Attorney?
A power of attorney is a legal document that grants a person the authority to manage personal and/or financial affairs on behalf of someone else. The person who enacted the power of attorney is called the principal, while the person with power of attorney is called the attorney-in-fact or agent.
Most people execute a power of attorney to give a party they trust the power to make decisions for them in the event they become incapacitated. If a person is already incapacitated, they cannot legally execute a power of attorney; the only way another person can be appointed to manage their affairs is through a conservatorship.
There are rules attorneys-in-fact must abide by to avoid becoming liable to legal recourse. Because these rules are determined by the power of attorney document, it’s important to understand the type of power of attorney you’ve been granted, as well as your limitations and rights under it.
Learn about the most common types of power of attorney in the next section.
General Power of Attorney
A general power of attorney gives an attorney-in-fact broad authority to act on behalf of the principal in financial and legal matters. They are not authorized to act on behalf of the principal in medical matters.
In California, a general power of attorney is not durable by default, so if the principal wishes for it to be so, then specific language must be included in the document to make it durable.
Limited Power of Attorney
A limited power of attorney is executed for a specific reason and allows the attorney-in-fact to act only in certain situations.
For example, you may enact a limited power of attorney to allow a business partner to carry out a deal on your behalf if you plan to be away from the office. Similarly, you may enact a limited power of attorney if you will be traveling abroad for an extended period to allow a friend or family member to act on your behalf should an emergency arise.
Medical Power of Attorney
A medical power of attorney (also called a health care power of attorney) gives an attorney-in-fact the authority to make health care decisions and provide consent to providers on behalf of the principal should they lose the capacity to do so themselves.
This type of power of attorney is springing and durable by default, meaning that it won’t go into effect unless the principal becomes incapacitated.
What Is Considered Misuse of Power of Attorney?
Anytime an attorney-in-fact acts against the principal’s best interests, it is considered a misuse of power of attorney. Power of attorney abuse does not have to be intentional; it can occur in the form of negligence as well. Here are some of the most common ways attorneys-in-fact abuse their powers of attorney:
- Altering estate planning documents:
When a person has power of attorney, they often have access to the principal’s financial accounts and personal documents. If the attorney-in-fact is a bad actor, they may change the principal’s will or trust for their own benefit. (Learn how to contest a will or trust that was procured through undue influence or fraud.)
- Commingling the principal’s assets:
Even if accidental or well-intended, the mixing of the principal’s assets with outside assets (including your own) is considered a breach of duty. You may only be mixing them temporarily or for the sake of convenience, but it still is not a good idea.
- Neglecting critical medical or financial decisions:
A power of attorney can be medical, financial or both, and each type comes with its own responsibilities. An attorney-in-fact neglecting any of these responsibilities is considered an abuse of power of attorney.
- Continuing to exercise powers after principal’s death:
A power of attorney expires upon the death of the principal, so if an attorney-in-fact continues to utilize the authority they’ve been granted past that point, it is unethical and considered a breach of duty.
The penalties attorneys-in-fact face for misusing their power of attorney are commensurate with the severity of their infraction. For example, if an attorney-in-fact changes the principal’s will, and the will goes on to become the subject of a will contest, the attorney-in-fact could not only be disinherited, but they could be ordered to pay the plaintiffs’ attorney’s fees and costs as well.
On the other hand, if they misappropriate a substantial amount of money from the principal, they could have to repay the amount they stole with interest, cover the opposing party’s attorney’s fees and costs, and potentially even receive jail time.
If you’re unsure whether your attorney-in-fact’s actions constitute abuse, contact an experienced POA attorney as soon as possible. They understand the signs to look for and can answer any questions you may have.
Understanding Your Power of Attorney Responsibilities to Siblings & Parents
The responsibilities of an attorney-in-fact are determined not by their relation to the principal, but by the type of power of attorney they’ve been granted. Therefore, power of attorney responsibilities to siblings and other family members are no different from the responsibilities one might have if they were a friend or business partner’s attorney-in-fact.
General power of attorney responsibilities may include:
- Creating an inventory of the principal’s assets and their value when the power of attorney took effect
- Paying the principal’s bills
- Collecting the principal’s income
- Investing the principal’s assets
- Keeping thorough records of financial transactions carried out using the principal’s assets
Medical power of attorney responsibilities may include:
- Consenting to medical procedures on behalf of the principal
- Ensuring the principal takes their medication on time
- Taking the principal to doctor’s appointments
- Enrolling the principal in a health insurance plan
- Keeping thorough records of the medical decisions made on behalf of the principal
Note that we have not included the responsibilities of limited powers of attorney, as their responsibilities are determined by the specific terms of the power of attorney document.
When siblings know you have power of attorney, they may have questions or criticisms about your decisions or your ability to perform the required duties. For the best chance of keeping your siblings happy, discuss major decisions with them, respond to their questions, and keep thorough records of all your actions.
Since a sibling can challenge your power of attorney status, it’s paramount that you fulfill your responsibilities to the principal and remain within the bounds of your authority.
Signs a Sibling May Be Abusing Their Power of Attorney
By being mindful of red flags, you can catch a sibling abusing power of attorney before they’ve had a chance to cause irreversible harm to the principal or their finances. Here are signs a sibling may be abusing their power of attorney:
- They have suddenly started to buy expensive items.
- They are being dismissive or exhibiting unusual behavior.
- They are isolating the principal from their family and friends.
- They moved the principal to a lower-quality assisted-living facility than they can afford.
- The principal’s property is being sold or transferred without their consent.
- The principal appears uncared for.
- The principal’s bank accounts are dwindling.
- The principal’s bills are unpaid, even though the principal has the means to pay them.
The above list is not exhaustive, as there are many ways siblings abuse power of attorney. The best way to know for sure whether your sibling is acting unethically in their role is to speak with a qualified POA lawyer about your concerns.
What to Do If Your Brother or Sister Is Abusing Their Power of Attorney
A sibling abusing power of attorney is a form of elder abuse if the principal is aged 65 or older, and you should treat it as such. In other words, it is a serious matter. You may be hesitant to start or involve yourself in a power of attorney sibling conflict, but you may not have a choice, since the principal’s physical, emotional and financial wellbeing are at stake.
In the following subsections, we discuss steps you can take if you suspect a sibling to be abusing their power of attorney.
Discuss Your Concerns With the Attorney-in-Fact
If you are on good terms with your sibling who is serving as a parent or another sibling’s attorney-in-fact, then it may be worth raising your concerns about their possible misuse of the power of attorney directly with them. Ask them for a record of all the actions they’ve taken on behalf of the principal and for copies of any related documents. This way, if the matter escalates, your lawyer will have something to work with.
While it can be daunting to broach this topic with your sibling, it can save you a considerable amount in legal fees if the matter can be resolved using this approach. After all, suspicions of siblings abusing powers of attorney are often nothing more than misunderstandings.
Search for Clues
If you were unable to discuss your concerns with your sibling or did not wish to, then visiting the principal’s home to search for clues is your next best option — though you will need to have access to their home for this step to be feasible.
Look around the principal’s living area for anything out of the ordinary, including unpaid bills, expensive gifts or a lack of essential everyday items, such as toilet paper and food.
Your findings can reveal a lot about the attorney-in-fact’s misdeeds. For example, unpaid bills can be a sign of neglect, while documents that appear forged can be a sign of criminal activity.
Consider Changes in the Principal’s Behavior and Health
If you have always known the principal to be a content and cheery person, but their disposition has suddenly changed, it could be because they are not being properly cared for by their attorney-in-fact. The same could hold true if they show signs of physical deterioration beyond what is normal for their age and any medical conditions they may have.
For example, if the principal is ill, but their attorney-in-fact is not taking them to see their doctor, it would be natural for them to feel anxious or cranky and appear sick. Similarly, if the principal is not being provided with the allowance the terms of their power of attorney document grants them, they may display anger or become overly aloof.
Because principals, since many are incapacitated, may not recognize if are being exploited, it’s crucial for their loved ones to keep their eyes open when around them to gauge whether there are any noticeable changes in their behavior or temperament. If there are, proceed to the next step.
Talk With the Principal
If you have access to the principal, it may be worth arranging a time to speak with them alone about how they are doing under the power of attorney. Ask them about their feelings surrounding their attorney-in-fact and if their needs are being met. Ask them what the attorney-in-fact could be doing better.
If the principal’s responses suggest they are struggling or are unhappy under the power of attorney, it may be time to take legal action.
Go Over Next Steps With a Probate Lawyer
If all the signs point to a sibling abusing power of attorney, you should immediately share your concerns with a probate attorney. Present them with any records or documents you have related to the situation to help them investigate the matter further.
If a principal is competent, they can revoke a power of attorney by voiding the document in front of a notary witness. If the principal is incompetent, the only way a power of attorney can be voided is by an interested party filing a petition with the court.
Keep in mind that if the court revokes the power of attorney as requested, the former principal (given they are incapacitated) likely will need to be placed under a conservatorship. The process of getting a conservatorship can be easy or difficult depending on whether the conservatorship is being contested.
Can a Sibling Contest a Power of Attorney?
If a sibling believes their brother or sister is abusing their power of attorney, they or another interested party can contest the power of attorney by filing a petition with the court that lays out all the reasons why the attorney-in-fact is unfit or inappropriate for the role. This is where any records or documentation you have related to the matter will come in handy, as specific details can help make your petition stronger.
As previously mentioned, many people opt to enlist the help of a lawyer at this stage of the process, as they can handle drafting and filing the petition, and making arguments in support of your position at any court hearings that follow.
If you’re wondering how to get power of attorney over a sibling, we regret to inform you that it’s not as straightforward as you might think. This is because only a principal can enact a power of attorney, and they must be competent to do so.
Many people ask about getting power of attorney over a sibling because their sibling is losing capacity due to old age or a cognitive condition, such as dementia. If this is the case, your best option would be to become their conservator — a role that has many of the same powers and limitations as the role of an attorney-in-fact.
If you are seeking power of attorney over a sibling who is competent, then the only way for you to be designated as their attorney-in-fact is for them to appoint you to the role through a power of attorney document.
Assuming you’re competent and able to oversee medical and financial responsibilities, it can be highly rewarding to serve as your sibling’s attorney-in-fact.
Yes, there is no limit to how many siblings can be designated as a family member’s attorneys-in-fact, but there are certain drawbacks to be aware of when going this route.
For example, if a single power of attorney document designates multiple siblings as attorneys-in-fact, it likely will be necessary for there to be unanimous consent among them for a decision to be made on behalf of the principal. If they are able to work well together, this shouldn’t be an issue; however, if it seems there will be a sibling rivalry over power of attorney decisions, then designating multiple siblings as attorneys-in-fact could be a mistake.
But there are also many benefits to siblings sharing power of attorney responsibilities to siblings or parents. Having two or three siblings to handle finances, caretaking, appointments and other power of attorney-related tasks can not only help ensure the principal’s affairs are well-handled, but it can remove a lot of the time and stress from each of the sibling’s power of attorney duties.
No, it is not required for all the siblings to agree on their sibling’s or parent’s choice for power of attorney. In fact, from a legal standpoint, their opinions carry no weight. This is because a power of attorney can only be executed by a principal who is competent and understands the implications of their decisions. A family member cannot execute a power of attorney for them.
That being said, if you are executing a power of attorney in which you will be designating your siblings or other family members as your attorneys-in-fact, it may be wise to discuss your plans with them in the event one or more of them are unable to take on the role.
While these three roles perform similar duties and fulfill similar purposes, there are distinct differences between power of attorney agents, trustees and conservators.
Agents under a power of attorney and successor trustees must be appointed by a principal or trust creator, respectively, who has capacity, or is mentally competent enough to understand the implications of their decisions. A conservator, on the other hand, is appointed by the court to manage a person’s life or finances after they’ve lost capacity.
In the same vein, conservators are not authorized to act until the conserved person loses capacity, and successor trustees are not authorized to act until the trust creator either loses capacity or dies. Conversely, whether an attorney-in-fact has power to act prior the principal becoming incapacitated depends on the terms and type of the power of attorney document.