Legal Question in Wills and Trusts in Arizona

Do I have grounds to seek to have my brother removed as my mother's agent on her medical POA ? Of course he and I do not get along, and of course there is a significant amount of money involved. My mother had a blood clot which revealed a large tumor on her ovary. My mother lives a mile from me; my brother lives in Illinois. I cared for my mother for 4 weeks while waiting for the clot to clear so that she could be operated on in Phoenix. Her oncologist suggested as a precaution she "get her affairs in order" and discussed Medical POA & advanced directives. We were going to the hospital to have it done and I called my brother. He informed me that was already taken care of when she visited him over the summer, and proceeded to act as though he was in charge and they were secret classified documents. My mother's memory comes and goes, and she genuinely did not remember having them drawn up. He then flew out to Yuma for two days got signed onto my mother's bank accounts & safety deposit box. Two days after he left I took my mother to phoenix for her pre-surgical intake which took about 5 days. He returned for the surgery. The day my mother was to be released to a rehab center we were waiting for my brother to show up to meet with the social worker who was leaving in an hour. (I thought the POA needed to be there.) My mother was getting agitated and asked to see the POA document. I told the nurse, thinking she would have to get it from admin, but she actually had it one her chart. My mom read it and saw my cousin was the alternate and got upset saying it couldn't be right. She started yelling she wanted a lawyer, so I texted my cousin asking if she had ever accompanied my mom to the lawyers office. I got no response. My brother arrived but they decided not to release her. She asked me to text my cousin again. The next morning I had still not received a response so I retexted her and added a few nasty comments about my brother. I would get to the hospital about 8:30 am, around noon my brother began sending nasty texts that I had libel and slandered him and that he was invoking POA and having me removed from the being able to see my mother. He tried but failed because my mother was not incompetent. He began telling any staff member that would listen that I was over medicated & mentally unstable. His wife and my cousin flew out on 5 hours notice. I needed to go back to Yuma for 3 days, I have had the keys & alarm code to my mother's house for 15 years. He used his medical POA long distance and had my mom's locks and alarm code changed! I had the company who did it call my mom, she was pissed and said that his wife had taken her wallet back to Illinois. The night I returned to Phoenix she had been moved to a rehab center and maybe 2 minutes after I arrived my brother began yelling at me and basically tattling to my mom about texts I had sent him regarding his suing me. He then ran into the hall calling for security and said I was there to intentionally aggravate my mother. My mom was asked if she wanted me to leave and she said for now (I was crying and my mom hates that) and the nurse asked do you want her not to be able to visit? My mom said, "No, I just want her to go for tonite." I have not seen, spoken to, or been able to even inquire about my mom since November 24th. I honestly don't even know where she is. I was told by a doctor at the rehab that this was my mom's decision and then he said he wasn't about to argue about because he knows of my issues and he can't put his patients in danger. (My issue is I have Multiple Sclerosis, I am a veteran's widow, and I have a 15 yr old daughter with Lupus) Incidentally, the "no trespass order" extends to my daughter too. My brother is a complete sociopath and we have been exchanging nasty texts this whole time. I have just discovered that he feels it has been in my mom's best interest to share selected ones. I have also just discovered that my brother was involved in a check kiting scheme and accepted a proffer, 7 yrs ago filed personal bankruptcy, and 5 yrs ago bought a million dollar house. I feel like he abused the POA, and honestly I would trust Bernie Madoff to be her POA before him. I'm open to any suggestions.


Asked on 12/12/09, 11:34 pm

1 Answer from Attorneys
Donald Scher Donald T. Scher & Associates, P.C.

It seems that you clearly have grounds to take action, but not to remove him as your mother's agent under her power of attorney. If your mother is legally competent, then she can revoke the POA your brother obtained and make a new one appointing you as her agent. I have not seen your brother's POA document, but a medical POA does not give the agent any authority to act with regard to her financial affairs or bank accounts.

You have some options. You can petition the court for appointment as guardian of the person and conservator of the estate of your mother. This requires the court to find that your mother is incapacitated and can't make informed decisions for herself. You can file a complaint against your brother for breach of fiduciary duty, elder abuse and financial exploitation. You can file a criminal complaint against your brother for elder abuse and financial exploitation as well.

The above civil action is a costly process, you could do it yourself or you would have to be able to retain and pay a lawyer to bring these actions and claims. If you are successful and benefit your mother, the court will reimburse you for the costs and fees involved in bringing the actions to protect your mother.

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Answered on 12/18/09, 6:31 am


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