Can the power of attorney take everything?

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Can the power of attorney take everything?

To give some background context my father and I live in Canada but his parents, my grandparents, live in the U.S.. Prior to my grandfather passing away, my grandparents will stated that my dad would get 90% of their assests and that his sister would get 10% as she was out of the family picture and never contacted my grandparents. Shortly after my grandpa died the sister decided to come back into the picture and told my grandmother that my grandfather told her to take care of her we believe that is a blatant lie, he hated her. My grandmother was on the onset of developing dementia and couldn’t really take care of herself, and being that we live in Canada we couldn’t offer her daily support. As a result, my grandma welcomed my aunt back into the family. Over time, my aunt manipulated my grandma to change her Will and to grant her power of

attorney where my dad was completely taken out of the Will and the assets would be split between the grandchildren me, my sister, and my cousin who is my aunt’s son. This aunt has stolen from my grandmother before and even convinced her to sign over her car so that she could drive her

around for doctor’s appointments which no longer happens. Unfortunately, my grandmother is not

doing well and we expect her to pass shortly. Being that my dad knew my aunt was taking advantage of my grandmother, he decided to call the company that currently holds her assets. They told him that the account her cash is zero and all the money was taken out last year by the power of attorney my aunt. Is it legal that my aunt can do that being that she is the power of

attorney? Is she doing anything illegal by manipulating someone who can no longer really think for themself? Also, would the process be more difficult/not possible since I’m in Canada? I’m not really looking for legal action to be taken against her to get what is rightfully mine in the will as much as I

just wan’t her to be punished for the manipulation she has conducted against my grandmother.

Asked on March 17, 2019 under Estate Planning, Alaska

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

No, what you describe would not be legal on one, possible two grounds:
1) A power of attorney (or will, for that matter) created by someone not mentally competent when they created it is not valid. So if your grandmother, whom you write had developing dementia, can be shown to not have been mentally competent when she gave your aunt the POA, the POA would not be valid; and if it were valid, then anything she did pursuant to it is not legal.
2) Even if the POA were valid, the attorney-in-fact or agent (those are the terms used for the person given power by a POA) has a "fiduciary duty," or law-imposed obligation, to act loyally to and in the best interests of her principal, the person giving her the power. Taking the principal's money for herself would be a clear violation of that and again illegal.
If you are primarily interest in justice, not getting the money back, try contacting the Attorney General's Office for the state where your grandmother lives and also adult protectiive services in that state.


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