This column first appeared in the San Antonio Express News on April 17, 2017.
Dear Mr. Premack: My mother has given my sister power of attorney over our mother’s assets. Sister has made it clear that she makes all decisions concerning our mom. Our mother signed over power of attorney thinking that my sister would make the best decisions should our mother need someone to make decisions for her. My mom now has had a change of heart. She has no control over anything and fears that my sister is wasting her money. How can my mom regain back control over her own finances? How can she find out exactly what my sister has control over? Should my mom die while my sister still has power of attorney, will everything go to her or do the other siblings have a say concerning our mother’s estate? – FG
Let’s define some terms. A Power of Attorney (POA) is a entrustment of authority from a Principal to an Agent. The “Principal” is the maker of the POA. An “Agent” is the person to whom authority has been entrusted. In your case, mother is the Principal, sister is the Agent. Every POA should be “Durable”, which means that it does not cease if the Principal becomes disabled. If it is not Durable, the POA ceases to function if the Principal becomes disabled.
Your mother needs to understand that when she signed her POA, she gave up none of her inherent authority. Despite the fact that she has appointed an Agent, your mother still has full unrestricted authority to handle her own financial issues. In fact, the Agent is the person who must live with restrictions. For instance, Texas law makes the Agent fiduciary for the Principal – meaning that any action taken by the Agent must always be in the best interests of the Principal. The Agent may not abscond with funds, may not exploit the Principal, and may to act outside the specific powers granted in the POA.
Hence, your mother retains ultimate legal control. Here are a few actions that she can take:
Call Adult Protective Services to report that she suspects that her Agent has financially exploited her. APS will investigate, make recommendations and assist your mother. If the Agent intentionally, knowingly, or recklessly misapplied assets, the act may be criminal. The Penal Code calls it “Misapplication of Fiduciary Property”. If it appears that Agent has misapplied assets, a call to the local police to report the violation may be in order.
Consult with the attorney who drafted the POA. Ask the attorney to draft another legal document that revokes the POA, thus removing the Agent’s authority. Your mother will need to sign the revocation, and will need to notify your sister that her power as Agent has been terminated.
Ask the attorney to craft a replacement POA appointing someone else as Agent. The new Agent must, of course, be trustworthy and understand the extent and limits of the authority being granted. Your mother may also consider discussing the pros- and cons- of a Living Trust, which is an alternative legal method to delegate management of finances and assets.
Demand an accounting from your sister. Texas law states that the Agent has the duty to inform and to account for actions taken under the POA. The Agent is required to keep records of each action taken on behalf of the Principal, and must deliver those records to the Principal on demand. Further, the Principal is entitled to all facts and all documentation related to the Principal’s property.
If the Agent does not respond to the demand for an accounting, the Principal may file suit. A court will order the Agent to comply.
A POA does not change who inherits. If your mother dies before the POA is revoked, the POA itself does not influence who inherits. However, your mother should verify that her Agent has not modified her accounts and life insurance to make them payable to Agent upon your mother death. If beneficiary designations have been altered, your mother has full authority to change them to match her desires.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.
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