Episode 54: What to Do When the POA Misbehaves

What to Do When the POA Misbehaves

Hello, it’s Peter Klenk, Trusts and Estates Attorney, talking to you about all this fun death and taxes, subjects that everybody loves to listen about.

Today we’re talking about what to do when the power of attorney misbehaves.

So, who is this person, this agent under this power of attorney? What is that?

Well, when you’re alive, you might need somebody to step in and help you with your financial things, doing your taxes, paying your bills, dealing with the insurance company, maybe paying for your medical insurance.

All the things that aren’t medical decisions. Those are taken care of by your medical power of attorney, such as surgeries, seeing medical records, and authorizing even DNR. That’s all medical.

The durable general power of attorney is about giving somebody the right to handle the things that are financial.

Now, those are two different jobs, and you might have the same person doing them, or you might not. As you can imagine, the people in the hospital might be bad with numbers, and the people with numbers might be bad in the hospital.

So you have this separate document, this durable general power of attorney, that grants the power to people to handle all of these things.

Now, of course, you’re going to pick somebody that you trust, right? This agent should be somebody you trust because they have the right to sign your name. They’re only supposed to act in your best interest. That’s the job, and you pick somebody who’s going to.

Or, if you want, you pick two people that work together, or three people. Then they all have to work together and keep an eye on each other.

Now, what do you do, though, if you have picked somebody and you think they’ve misbehaved?

Or you’re a child, let’s say, and you think that Mom or Dad has picked somebody and that person’s not doing their job. Maybe they’re paying bills they’re not supposed to. Maybe they’re taking money for themselves. Maybe they’re just ignoring their job.

They’re doing something that you think is harmful to the person who gave them that power.

Well, what can you do?

Of course, you can always ask and say, “Hey, would you provide me the document to make me feel more comfortable?”

And should they? Well, unless you’re just trying to bother Mom or something, right? You’re trying to be irritating.

Why wouldn’t they? I mean, that’s the first step. If somebody’s really taking care of the person, why wouldn’t they be willing to share that information with an interested person?

Not just some random person who asks them questions, but an interested person.

Why wouldn’t they just share that information? I don’t know, right?

Now, it could be they’re just jerks. They don’t want to. It could be that they think that you’re trying to be intrusive and find out information about the person that you shouldn’t have.

It could be they’re thieves. They’ve been stealing money. They’re doing something wrong, right?

So if you can’t get the information yourself, what can you do?

Well, if you’re an interested party, and we can spend a whole podcast talking about that, but basically, if you’re somebody who has a gain or a loss in all of this, you have a right then to petition the court.

There’s a specific court in every state that oversees these types of issues. They have been happening since the beginning of time, people who are in charge, we call them fiduciaries, abusing their rights and what their obligations are.

So you go to your Trusts and Estates Attorney because now you’re going to court.

You wouldn’t go to just anyone, not one that just does wills but never goes to court, or somebody who does probate. You’re looking for somebody who goes to court and handles these matters regularly.

They’re a little tricky. It’s good to have somebody who’s done it before and kind of focuses on it.

So at our firm, we have three attorneys. This is all they do. That’s it. They don’t do wills. They don’t do probate. They go to court about family disputes over these fiduciary matters.

That’s what you’re looking for.

So, what do they do?

Well, they file a petition.

Now, first, you have to prove to the court that you’re somebody who has a dog in the fight, so to speak, right?

You can’t just randomly go around filing petitions saying, “I want to see what this agent’s doing or that agent’s doing,” if you don’t have any connection with them.

But your petition is going to spell that out. Here’s your interest, why you have the right to be able to file this, and what your concerns are.

Then the agent has to comply. They have to show up.

Now, they can show up and say, “He’s full of crap. He doesn’t have a right to this data for the following reason.”

Or typically, they show up and say, “Okay, fine.”

A lot of times, the jig is up, right? Of course they’re going to give it to you.

And again, if they were just being a pain in the ass, they should have just been giving it to you in the first place. Now they’re going to do it.

But let’s say they don’t want to.

Well, the judge is going to order them to do it in a certain amount of time.

Typically, it’s done through what’s called an accounting. They need to justify every decision they’ve made and account for every penny of what they’ve spent, all the investments, everything.

Now, the interested parties then have the right to get a copy of that and look it over.

Could be they’ve just been angels. They just didn’t want to tell you about it. They’ve been real pains in the butt.

Well, okay, now you know, and we all go on with our lives.

But if you see something that you don’t like, that you question, well, now you can go back to the judge and say, “Well, here in this report, here’s the thing I object to.”

And hopefully, again, the judge is going to try to get you guys to settle and figure out what’s going on.

But if nothing else, you have a day in court where you get to show up and say, “Well, here’s what I think is wrong.”

And of course, they have a right to say, “No, no, you’re wrong,” right? That everything they did was great.

And the judge listens. The judge makes a call.

Now, if the judge agrees that something was wrong, they can order the person to put money back. They can remove them. They can do all sorts of things.

There are lots of options, and there’s really no way for me to sit here in this podcast and tell you about them all.

It’d be more like if you call us and we have a case, we’d say, “Well, here’s what the judge is most likely to do in this scenario, given these facts.”

So all you really kind of need to know right now is the judge can take action to make sure that the person they’re supposed to be looking out for is really being taken care of, that the person is acting in their best interests, and then, well, you see where that goes.

The person might still be in charge, but now they know they better behave.

The person is in charge, but they know they better start giving you data.

Or maybe they’re not in charge anymore because they’ve been removed, right? Life goes on.

So that’s it.

You do have a right to find out what’s going on, and if that agent is not behaving, you do have recourse to have it corrected.

So that’s how that works.

It’s Peter Klenk, Trusts and Estates Attorney. Hope you enjoyed this.

If you did, like and subscribe so you can hear my delightful voice in the future as I release new podcasts with more information.

Happy to talk to you. You have a great day.