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What can we do if the power of attorney refuses to share information?

What can we do if the power of attorney refuses to share information?

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!!

Category: Fiduciary Duty
Date: 04/07/2025
State: Florida

Answer:

An agent with power of attorney (POA) has a fiduciary duty to act in the best interest of the principal, which in this case is your mother-in-law. This includes a duty of loyalty and a duty of care. The duty of loyalty means the agent must act solely for the benefit of the principal, avoiding conflicts of interest. The duty of care requires the agent to manage the principal's affairs competently and responsibly.

If the agent fails to provide information about your mother-in-law's finances or medical condition, this may constitute a breach of fiduciary duty. To establish a breach of fiduciary duty, you must show that:

You trusted the agent to act in your mother-in-law's best interest.
The agent breached their duties.
Your mother-in-law suffered damages as a result.

If your mother-in-law still has the mental capacity, she may revoke the current POA or create a new one that includes requirements for regular financial reporting. If necessary, you may need to petition the court for assistance. In cases of abuse of power of attorney, there may be grounds for claims such as breach of fiduciary duty or elder exploitation (Fla. Stat. § 825.103). If the financial assets involved are significant, this could lead to criminal charges as well.

For more assistance, consider seeking legal advice to understand your options and the best course of action.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

What is a POA not allowed to do?

A power of attorney (POA) cannot make decisions that are not in the best interest of the principal, such as self-dealing or using the principal's assets for personal gain. They also cannot make decisions that the principal has explicitly prohibited, such as altering a will or making medical decisions if the principal has previously stated their wishes. Additionally, a POA cannot act if the principal is deemed incapacitated without proper legal authority. It's essential for the agent to adhere to their fiduciary duties to avoid legal repercussions.

Can a nursing home override a power of attorney?

A nursing home cannot override a power of attorney (POA) unless the POA is deemed invalid or the principal lacks the capacity to make decisions. If the nursing home believes the agent is not acting in the best interest of the principal, they may report concerns to the appropriate authorities. However, the nursing home must respect the authority granted to the agent unless there are legal grounds to challenge it.

Can an elderly person have more than one power of attorney?

Yes, an elderly person can appoint more than one power of attorney (POA), but it is crucial to specify whether they have equal authority or if one has priority over the other. Having multiple agents can lead to confusion and conflicts, so clear communication and legal documentation are essential. If one agent is not fulfilling their duties, the principal may revoke that POA and appoint a new one.

What is a red flag power of attorney?

A red flag power of attorney typically refers to situations where the agent may be acting against the best interests of the principal. Signs include lack of transparency, refusal to share information, or making decisions that benefit the agent rather than the principal. If you notice these behaviors, it may indicate a breach of fiduciary duty, and you should consider seeking legal advice.

What three decisions cannot be made by a legal power of attorney?

A legal power of attorney (POA) generally cannot make decisions regarding the principal's will, as this requires specific legal processes. Additionally, a POA cannot make decisions that the principal has explicitly prohibited, such as certain medical treatments if the principal has expressed their wishes. Lastly, a POA cannot act if the principal is declared legally incapacitated without the appropriate legal authority.

What are the disadvantages of being a power of attorney?

Being a power of attorney (POA) comes with significant responsibilities and potential legal liabilities. The agent must act in the principal's best interests, and failure to do so can lead to claims of breach of fiduciary duty. Additionally, the agent may face emotional stress from making difficult decisions and managing the principal's affairs. There may also be financial implications if the agent is required to cover expenses or if their actions lead to legal disputes.