by: Sanford R. Altman, Esq., retired
Jacobowitz & Gubits, LLP

Q. My mother is in her eighties and in poor health, needing several hours of home health care a day for which she has sufficient funds to pay privately. My sister had been appointed on her Power of Attorney and handles her finances. Suddenly, my sister announced that she is having Mom buy a much more expensive house somewhat closer to us but still too far for easy visits. Since she is reluctant to share any of the financial information with me, is there any action that I can take?

A. You are absolutely correct that the key to this issue is your sister’s reluctance to share information. Such a failure can make even the best intentions appear suspicious. While your mother obviously trusted her enough to appoint her as her attorney-in-fact, abuses of this trust are not uncommon. Your sister has been granted a great deal of authority over your mother’s affairs. However, she is legally obligated to act only in your mother’s best interest. If she does otherwise, she can be held both civilly and criminally liable.

Now this doesn’t mean that you should immediately go out and try to have your sister arrested. What it does mean, is that you need more information. This will determine whether any action is needed at all. First, of course, try for voluntary compliance from your sister out of your concern for your mother’s well being. In the event that this is unsuccessful, a little more pressure is called for such as a letter or call from your attorney so that your sister knows there may be consequences for any inappropriate action on her behalf.

What information are you seeking? The item that raises the “red flag” is the proposed new house. You must know in whose name the house will be owned. Your sister’s name should not be on the Deed without the names of all your mother’s children. If only your sister’s name is on the Deed (for example, with your mother as joint tenant with right-of-survivorship), upon your mother’s death, sister would own the house. This would be true even if your mother’s will left everything equally to all her children. The same is true of any bank or brokerage accounts. This may be handled progressively – if only her name is on the Deed with your mother, ask for the bank statements. If she is willing to supply these, take note of both how they are owned and also any large or regular withdrawals which may have been transferred to your sister.

If she is still unwilling to offer the information, you have several options. First, you can contact your county’s Adult Protective Services (APS) which is part of the Department of Social Services. Advise them that you believe that your sister may be guilty of economic elder abuse of your mother and they will investigate. This, in and of itself, may be sufficient to inspire your sister to reveal the information you are seeking and, if necessary, correct any potential misappropriations. You should be aware that if there has been theft, criminal charges may be brought through the District Attorney’s office.

Second, you may petition the Court to become your mother’s guardian. To succeed, you must prove that she is incapable of handling her own affairs and that you are the best person to be her guardian. Any showing that your sister may be taking advantage of your mother or even that she is innocently mishandling her affairs will help in this regard.

Not to be forgotten here is the purchase of the house. If you cannot convince your sister to voluntarily back away from these plans, you may need to seek an injunction either as part of your guardianship proceeding this or in separate court proceedings. If you wait until the house is purchased, it will be much more difficult.

Two final points. First, if your mother is in poor health and secure financially, she may be in serious need of planning by an attorney with expertise in elder law. Urging your sister to do so any time along the way can both ensure that the financial data is examined by third party and that proper steps will be taken for your mother.

Second, and most important is for our readers, that this situation may be prevented by insisting on becoming involved in your parent’s care and financial management long before a crucial situation arises. Early involvement is seen as a help and not a challenge yielding better care for your parent as well as family harmony.