What can be done if a POA abused their power?
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What can be done if a POA abused their power?
My sister was granted POA 3 years ago for my mother but it was taken back last year. About 2 months ago, my mother passed and I have found that over the 3 years my sister spent $38,000 on my mothers credit card and paid it with my mother’s Trust account. Every penny was for her personal use. How can I retrieve those funds?
Asked on August 13, 2015 under Estate Planning, Texas
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 8 years ago | Contributor
If you are an interested party--which you presumably are, since you most likely have or would have inherited from your mother, and so the money misappropriated from your mother is money that would have gone to you--you can bring a lawsuit in chancery court asking the court to have the attorney-in-fact (also called the agent; i.e. the person with authority under the POA, or your sister) "account" for her actions and expenditures. Attorneys-in-fact have a fiduciary duty to their principals (your mother): an obligation to act in the principal's interest, and not for the attorney-in-fact's own benefit. If a court finds that your sister did abuse her power, it could require her to repay the money she took to the estate, where it will be distributed to the heirs. and beneficiaries.
A lawsuit like this is more complicated than, say, suing a contractor for breach of contract in small claims court (or suing for nonpayment of some debt, or for damage from a "fender bender"); you are advised to retain an attorney to help you.
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