Legal Question in Wills and Trusts in New York

power of attorney: breach of fiduciary responsibility?

My mother died. She had given her power of attorney to her friend (in his 80s). Two months before mother's death, friend transfered a savings account (in my mother's name but in trust for me) to his own name and in trust for an acquaintance of his who is now helping him with his personal business matters. The money was not needed for my mother's care, etc. Is that a breach and actionable? Do I have any recourse? Also, my mother sold him half her house (he was/is living there), joint tenancy, so now he owns it all; while my mother was alive, he had told me I would own half the house upon her death but he is keeping it all. Again, do I have any recourse? There was no will. Lastly, do I own all of the contents/my mother's possessions (he already sold off her jewelry) as her sole living relative? I am desperate for help, feel like I've been robbed of my inheritance (lots more to the story). Thank you so very much.

Asked on 4/02/08, 12:05 am

3 Answers from Attorneys

Debra Palazzo Law Offices of Debra Palazzo, LLC
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Re: power of attorney: breach of fiduciary responsibility?

Based on your facts...yes, you may have recourse but you need to act quickly. GO SEE AN ATTY!

You may be able to rescind the deed your Mother made to him and get the savings $$ returned.Alot more info is needed, including how much did he pay for 1/2 house? who prepared deed? Your Mom's health at the time, her relationship to the "friend", etc.

Did you see the deed to him? Are you sure it is Joint Tenancy w/ Right of Survivorship? If not spelled out, the court will assume it is Tenants in Common (you inherit her 1/2). I would be glad to look at it for you if you would fax it to me. If you do not have it, go to county clerk and ask for copy (there may be on-line ability to get copy).

He has no right to her jewelry or personal property. What about her other bank accts?

If this man is in his 80's you must act before he becomes ill/passes and then you are fighting his heirs!

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4/02/08, 8:23 am
Michael Markowitz Michael A. Markowitz, PC
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Re: power of attorney: breach of fiduciary responsibility?

Q. My mother died. She had given her power of attorney to her friend (in his 80s). Two months before mother's death, friend transfered a savings account (in my mother's name but in trust for me) to his own name and in trust for an acquaintance of his who is now helping him with his personal business matters. The money was not needed for my mother's care, etc. Is that a breach and actionable?

A. Possible. A fiduciary owes a high degree of loyalty toward the principal and cannot self-help toward the funds.

Q. Do I have any recourse?

A. Yes, You can commence an action for breach of fiduciary duty, fraud, conversion (civil theft), etc.

Q. Also, my mother sold him half her house (he was/is living there), joint tenancy, so now he owns it all; while my mother was alive, he had told me I would own half the house upon her death but he is keeping it all. Again, do I have any recourse?

A. Possible. If he paid fair market value for the house, it would be difficult. However, if he paid no or little consideration, you may be able to claim undue influence and commence an action for a constructive trust.

Q. There was no will. Lastly, do I own all of the contents/my mother's possessions (he already sold off her jewelry) as her sole living relative?

A. Yes. Even if there was no will, as sole heir your inherit intestate. If he took her jewelry, sold and pocketed the money, that also would be actionable.

Not only should you retain a lawyer, you may want to contact the local District Attorney's Office.

Mike.

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4/02/08, 8:40 am
Andrew M. Doktofsky Andrew M. Doktofsky, P.C.
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Re: power of attorney: breach of fiduciary responsibility?

A person who has been given the powers of an "attorney in fact" must act only in the interests of the principal (in this case your mother). If the friend that she appointed transferred funds to himself, to benefit himself, this would clearly violate his fiduciary duty as your mother's agent. You may have a cause of action against the friend. However, you will have to be appointed as the representative of your mother's estate in order to bring a lawsuit. If there was no will, then you would bring a proceeding in Surrogate's Court to be appointed the Administrator. You could then most bring an action to recover the money that was transferred. This would only be practical if the amount of money transferred was sufficient to justify the cost of recovering it.

Regarding the house, as stated in a previous answer, if it was owned by your mother and friend as "tenants in common" then your mother's half goes to her estate. If it was as "joint tenants" then the friend would own the entire property. In that case, if there is a possibility that the sale to the friend was improper (e.g. not fair market value) then you would want to consider filing a "Lis pendens" on the property to put any buyers on notice that there is a potential cloud on the title.

If you would like to discuss your situation further, please do not hesitate to contact me directly.

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4/02/08, 10:35 am

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