Breach of Fiduciary Duty

**newfoundland** · 03-26-2012, 05:39 AM

My question involves a power of attorney in the state of: New York

my mother who is a senior citizen has mental problems for many years now, she goes to a family physician who is incompetent for diabetes care and general health issues but she will not see any other specialists and would need to be properly evaluated by at least a mental health professional to confirm what mental problems she has [i suspect she has at least agoraphobia-anxiety-depression] and may have Alzheimer's but as i have mentioned she refuses to see any doctor other than the family doctor.

my brother who lives with her has power of attorney over her bank accounts if not durable POA i am not sure of the durable poa or even general poa as he has stated that he has durable but i cannot confirm any of this as it is very difficult to get information from my mother due to her mental condition.

my sister had POA over her bank accounts and handled her finances competently for about a month a couple of years ago but my brother scared her into changing POA to him, we know he did this in order to use my mothers money to pay for his own bills, we have witnessed verbal threats by my brother to "throw her in a nursing home" or "have her committed", he has physically abused her more at least 2 times that we know of, once by throwing her to the ground and one time punching her.

we have pleaded with my mother to get POA of her finances back with sister and have told her many times that brother is spending all of her money but she is so scared of him.

social services and police have been to house a few different times to see how mother is doing but she will not admit to financial/physical/verbal abuse and of course brother lies to them every time they have visited and gets away with these crimes. imo, police and social services know well what is going on but have failed to stop my brother.

what can we do as her family who cares about her to stop brother from taking her money [abusing his POA privilege]?

**Mr. Knowitall** · 03-26-2012, 05:59 AM

If mom is not mentally competent to manage her own finances, and her attorney-in-fact is not an appropriate person to safeguard them, her other relatives can petition for the appointment of a guardian.

**newfoundland** · 03-26-2012, 02:48 PM

does the court prefer us having our own attorney to file guardianship petition or can we do this on our own?

we do not have enough assets to pay an attorney. i live out of state and my sister lives in same area as my mother [not in NYC btw if it matters] but sister is not capable of filing petition, would i be able to file petition or do i need to live in state?

how does court determine mother's mental capacity? and if she objects to guardianship or evaluation [we anticipate she will] will court go ahead with guardianship proceeding or will it end with her objection if she is lucid at time of hearing?

**Mr. Knowitall** · 03-26-2012, 06:13 PM

In most states you can initiate guardianship proceedings on your own. A few require that the petitioner be represented by counsel; I am not aware of any such requirement for New York. If you file the petition, you need to be present for court proceedings. Also, the court may be wary of appointing a guardian who lives out-of-state, as there can be access and communication issues that arise over long distances.