Legal Question in Wills and Trusts in New York
What are the duties of a durable power of attorney and how to remove for violati
My brother and I are both durable powers of attorney for my mother who has been in home since August of 1998. The power of attorney specifies that we can act independent of each other. My brother has sole responsibility to act as her medical proxy (living will). At the time of her incapacitation, my mother had assets in excess of one million dollars and her expenses were covered by her income. Now her assets are about a third less and her expenses are not covered by her income. In the past, my brother reimbursed himself for his personal expenses in visiting our mother. I permitted him to do so. Recently, I informed my brother that I would no longer accept his reimbursing himself for his personal(not medically related) from her funds as she could no longer afford to do so. He initially complied, but has resumed reimbursing himself from her assets because he was advised that ''a pattern of giving'' had been established. My brother lives in Tulsa and I live in South Korea.
Therefore, under the circumstances, has my brother acted in violation of his duties as a power of attorney, and, if so, how do I go about having him removed as a power of attorney should he fail to return the money he has taken to my mother's account?
1 Answer from Attorneys
Re: What are the duties of a durable power of attorney and how to remove for vio
While there may have been a prior understanding as to the reimbursements, they appear to have been with your consent, and not established by your mother. If this is so, I do not see why you cannot withdraw your consent, based upon the substantial decline in assets value and income. Anticipate some contest from your brother, perhaps even to the point of forcing you to get a court determination if he refuses to comply. You could, as part of that suit also seek to limit his withdrawals and even to have him removed (although this might not be done as he acted with your approval previously).
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