Legal Question in Elder Law in New York

our daughter put her father in a nursing home where he didnt need to be and after I found out he was in there I worked with advocate of aging and proved him did not belong there. Yesterday we got a statement from his 401k and she had taken out 12659.00 out after she had put him in the nursing home. She had the federal taxes taken out but didnt have the state taxes out. Is he going to have to pay the state taxes on this. He is disabled and doesnt have alot. She cleaned out his house and got rid of his truck and motorcycle and all of his things in his house. This doesnt seem fair to him can she do this . At the time she was his power of attorney but this seems like she misused the power.


Asked on 2/04/12, 5:45 am

1 Answer from Attorneys
Carol Ryder Law Office of Carol Ryder PC

I am so sorry to hear what you are going through. I cannot tell from your example what the money was used for but she might argue it was for his benefit, even a gift(s). There are different power of attorney issues here and without seeing the POA, I cannot tell. One issue is that POAs drafted before the new POA laws requiring a gift rider are still valid. The law was changed to prevent self-dealing and theft by POA holders BUT for practical reasons the state did not invalidate previous ones. Speak with someone in your DA's office or better yet, someone from the "advocate of aging" group you mentioned about this all-too-common scenario.

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Answered on 2/27/12, 12:11 pm


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