Can I sue my brother for misusing his POA and stealing over $300k in checks he made out to himself the day before dad died?

My husband has Lou Gerhings , I am POA he said I could purchase a car. I didn't buy the car he said I could buy and we are going through a divorce. I just learned he have filed criminal charges against me for misuse of POA.

Until forced to resign, my brother was POA for my mother for four years. My mom is an Alzheimer's patient and has been incompetent and unable to manage her finances for almost 6 years. Just three weeks before becoming her POA he took her to his bank and had her sign signature cards with him to open both a joint checking and savings account. She could barely sign her name but it was just legible enough to be recognizable. My brother filled out all the accompanying new account paperwork and checked that the accounts would both be treated with full rights of survivorship upon the death of either account holder. (I doubt he was concerned that he may pass away before my mother who is now in the late stages of the disease.) During his time as POA, I was Secondary and as the oldest and only daughter I suppose fell into the often unavoidable routine of taking on the majority of the caregiving, even though she was and still is in a nursing home in another city.....3 miles from my brother's home. I handled and saw just enough as secondary POA since he was most often unavailable to grow increasingly suspicious of his handling of my mother's finances. He habitually refused to provide me with even the most ordinary information about her financial status even when I had to ask because I was making most of the medical and residential decisions as secondary POA and HCPOA, made hundreds of claims and statements about how he had a "system". and every answer I was actually able to get from him was contradicted by some other answer or explanation for the next question I would ask. I will make a very long and despicable story short......I hired an attorney who was able to convince my brother to resign as my mom's POA to avoid an adversarial application by me for guardianship. Such an application would have required that I provide evidence showing why her existing POA was not fit to take the responsibility of guardianship. The thought of anyone being aware of what he was doing had him signing on the dotted line in seconds. I became her POA and from that time on I was able to go through every detail of every statement connected to her finances while my brother was her POA. The result, in order to recover the 3000,00. he took from her over four years by transferring her money into his own account, using the checks for his own expenses, paying for his children's college tuition from her investment account, I filed a lawsuit. Because of the amount and the dozens and dozens of documents that clearly prove constructive fraud and intent, malice and of course breach of fiduciary duty, the hearing is set to take place as a jury trial which would also make it possible to recover punitive damages....particularly the huge legal fees. We are not far from the court date so depositions and mediation have begun. During my brother's deposition, it was revealed that he has been in debt to the IRS for 65,000 for the last three years, makes barely enough to get by as the vastly successful, ambitious professional he has portrayed himself to be (even his bio on his company's website is fraudulent with claims of advanced education and success neither of which are even close to the truth). He is basically penniless and his attorney brought copies of the last four years of tax returns to prove his poverty. Without access to my mother's money as a second income (which he spent lavishly....not even a cent toward his debt to the IRS) His attorney had a conference with my mother's attorney after the first mediation session (which lasted all of about an hour) and admitted that even trying to collect through a promissory note over a long period of time was hopeless......he will just default on it. I know that there will be some personal consequences for him but that does not help my mother and I am really beating myself up for that. Had I known even two years ago what I know now, had the evidence I have and the proof that makes me physically ill, I would have started with the District Attorney with the hope that it would be handled as a criminal matter.....which it is. DA's are usually very reluctant to take on issues exploitation of an elder when the perpetrator is a family member. They often feel that those issues should be settled in civil court. But the evidence against him is overwhelming and irrefutable and now that I have learned that he himself is a fraud I'm not convinced that he might not become a danger to others.......with me at the top of the list. The court can take what little he has (a small house in need of repair and one car) but will have to get in line behind the IRS. I feel like I have cost my mother money that I can never recover for her. She is in the late stages of Alzheimer's and to even allow myself to consider how someone could do this kind of thing to anyone, much, much less their own mother just sends me to a really bad place. Is this something I will eventually have to make peace with as the hardest lesson of my life or under these circumstances is there any process for turning this over to the DA now? I will always feel sick when I think about what it has cost my mother financially just to find out at the 11th hour that her son is a fraud and a criminal. I am grateful in some ways that her diseased has progressed to the stage that she will never know any of this, but I need some sense that my brother will be held accountable and suffer some serious consequences as a result of his crime against my mother.
Where to Turn?fd

what can I do if I do not agree with what going with my brother care and meds

I'm flying back to the town where dad died and probate is being held Monday. It's been almost two years now. I hope the court will do the right thing. After a court ordered disclosure I found a lot of things my brother did and didn't do. He never put up a head stone as dad requested in his will. He used his POA after dad died to close one account and put the money in his own bank (almost $100,000) and put his name on the other account as co-owner. This account is still open! There are a lot of other things he did to take everything dad left. When court took away his right to administer the estate, he still was writing checks on it. I have documents for all of it. It is very frustrating how slow the system works, but I am hoping the judge will look at all the information and do something about all the abuse my brother did to the estate. It seems that a lot of people take advantage when a loved one is sick or passes away. How can they do it and sleep at night? I took care of dad while he was dying of cancer and never asked for nor expected any pay. It was my chance to spend time with my dad before he was gone. I would never have thought to take advantage or influence dad. Before he was on hospice, he put my brother and me in his will share and share alike but it seems my brother wanted everything. I just don't understand why someone can act like that.

My brother wrote three checks, one $9,000 and two $9,500 using POA just before dad died. The last two I suspect were written after his death as they were cashed two afterwards, but dated the day before. He is administer of estate and it is pretty much all gone since he says dad told him to give most of the money to his family, although the will says it was supposed to be half and half between us two. I would guess the checks were all under $10,000 due to what ezcare said. I wondered why the amount was like that and not just $28,900. Thank you for added info into this ongoing action. Probate has recended his letters and my attorney is pursuing case. I don't really want him to go to jail. I would just like my half.

I too am in the same situation. My mother has lived with all 3 of us girls and is currently with the oldest who is POA. POA has cleaned out mom's bank accounts, has had mom gift her our family home and land, and refuses to let us visit our mom. Vehicles have been titled over to her children. All life insurances are now in living trusts to go to POA !! Attorney is hired and court date is this week !!!

I find myself in a similar situation with my sister who is executrix of my father's estate, although as far as I know, she waited until he had passed before the games began. She refuses me access to any of the records or files on the estate,(I have had to go the surrogates court for what little proof I have) and refuses me access to OUR estate atty.

I am now in the ugly position of having to hire a lawyer and let them proceed no matter the consequences to my sister.

Do what you must do, but try to file it all away in your mind as JUST BUSINESS, and leave your heart free for the important stuff. Best of luck.

I thought I had heard it all in this forum...but, stealing large amounts of money from your father while is on his death bed just takes the cake!!!
Your sib deserves to be prosecuted to the fullest extent of the law and then some. How deplorable!
Good luck. Dealing with both a criminal and attorneys is just not what you needed right now.
Geezzz....I hope there is a hot rock in hell waiting for these creeps.
Lilli

It sounds like abuse, from what you say here. You'll need an elder law attorney or estate attorney to help you.
Good luck,
Carol

This is elder abuse and you have every right to report your brother to the DA's office to have this investigated.

Diane

Right on, AlzCaregiver!!

Sounds like thirty years in prison for me...What the heck did he think he would get away with this...it's like a bad movie. Have him arrested immediately.

Colleen, of course your brother had no right to do what he did. ezcare made an excellent suggestion when she said to talk to the bank manager. I am surprised that the bank honoured the cheque since it was for such a large amount. I hope your brother isn't the executor of your father's estate. If he can be found guilty of not handling his POA duties properly, I would think he would no longer be considered fit to serve as executor. Too bad that your father was such a traditionalist and left all his financial affairs in the hands of his son. Good luck in dealing with your brother, Colleen.

I also agree with LynnPO. Not only is the cashing of those checks fraudulent, but as POA for your father, your brother had an obligation to handle your fathers financial matters including the payment of bills and if he is also named the Executor of your father's estate, then is responsible for handling all the details associated with Probate and other tax issues. This is not just a title. Your brother may be committing a federal crime if he is not in conformance with the legal duties of Executor. BTW--another very quick way to get action would have been to call the bank where your father had his checking account and inform the manager what had taken place. The bank has legal obligations in this matter because the amount of the check(s) exceeded $10,000 So it is not too late to take this action as well as what LynnPO suggested.

I AGREE and I would be sure that you get an attorney who has dealt with these issues before!!! Honestly it is amazing how people can justify their behaviour when money is involved!!!

This is theft and because your dad was still alive is considered elder abuse. ASAP call the district attorney's office in the county where your dad lived report your brother and ask for an inquiry. After someone dies the law requires probate of the estate - especially if there is money or debt left behind. This is to ensure that creditors are paid off THEN money can be distributed to heirs. His failure to ensure that all bills are paid BEFORE doling out funds is illegal.