Legal Question in Wills and Trusts in New York
I am the court appointed executor of my mother's will/estate. My one brother was her POA, looking at the cancelled checks from her checking account. I have found my brother wrote himself $ 3,650.00 in 6 checks, and one to his ex wife of $ 1000.00 in the last three years before my mothers death and there is even more checks going back further. I will be looking into another account where we think he withdrew money for his benefit from there also. Do I have a leg to stand on if I fight him on this ? Or does POA over rule ?
2 Answers from Attorneys
Yes, you can pursue reimbursement to the estate, if he breached his fiduciary duty as POA.
I agree with David. The POA has a fiduciary duty to act solely for the benefit of the person appointing him. If the POA breaches this duty, he can be surcharged. However, unless you can make a strong case for abuse of duty by benefiting himself, without the approval of Mom, keep in mind that this might be an uphill battle. As POA he has the right to be reimbursed for things he purchased for Mom or bills he paid for her using personal funds, and the checks he wrote to himself might be such reimbursements. Also, as to the check to his wife, it also could be a reimbursement, or if the date was around a holiday or special occasion (like a birthday or anniversary), Mom might have approved it as a gift, as could be the case with other checks that were written to other family members. More facts are required before taking permissible action if, in fact, a breach took place.
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