How Can i Makle an Agent With a Power of Attorney Show Me Financial Records?

Full Question:

My mother-in-law is 90 years old. She appointed her son, my brother-in-law as her power of attorney. He has been her POA for at least 5 years. She has recently gone into a nursing home and my husband and I have asked the POA to keep us advised about her financial situation as well as her medical conditions (we are not in the same town) and he has refused to share information. I have no idea how much money she has at this point, to pay for nursing home, funeral expenses, etc. What can we do to get him, the POA to share information with us. Do we have a legal case here? My mother-in-law is not getting any information from her son either, and she even though she is in a nursing home right now - she is aware and wants to know her financial situation in order to plan her future. Help!!
05/10/2010   |   Category: Fiduciary Duty   |   State: Florida   |   #22064

Answer:

An agent has a fiduciary duty to act in compliance with the durable power of attorney according to law and in accordance with the terms of the document. Fiduciaries, such as agents under a power of attorney, owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.

The elements of a cause of action for breach of fiduciary duty are:

(1) Plaintiff and Defendant share a relationship whereby:

(a) Plaintiff reposes trust and confidence in Defendant, and

(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;

(2) Defendant breaches its duties to Plaintiff; and

(3) Plaintiff suffers damages.

The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:

(1) The passing of the statute of limitations for filing the claim.

(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)

(3) Lack of standing

(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)

(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)

If your mother still has capacity, she may be able to revoke the POA or create a new one, including a provision requiring a periodic accounting. It may be necessary to petition the court for relief. Abuse of a power of attorney may lead to a claim of breach of fiduciary duty, theft related charges, elder abuse, and others.An accounting may be petitioned for and ordered by a court.

Please see the following FL statute:

825.103 Exploitation of an elderly person or disabled adult; penalties.--

(1) "Exploitation of an elderly person or disabled adult" means:

(a) Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:

1. Stands in a position of trust and confidence with the elderly person or disabled adult; or

2. Has a business relationship with the elderly person or disabled adult;

(b) Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent; or

(c) Breach of a fiduciary duty to an elderly person or disabled adult by the person's guardian or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of property.

(2)(a) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $100,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) If the funds, assets, or property involved in the exploitation of an elderly person or disabled adult is valued at less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

See also:

http://www.clarkskatoff.com/general.php?category=Power+of+Attorney+Abuse+Article+
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0812/SEC0145.HTM&Title=->2009->Ch0812->Section%200145#0812.0145