Legal Question in Elder Law in New York

My Fiance had POA for her 85 YR old dad, who she cares for 24 hrs. She had POA. Her brothers got mad at her and Essentially bullied her dad into signing POA to them, superceding hers. His capacity was certainly questionable. He didn't remember the next day what he had signed, but that is a separate issue. SHe had joint bank accounts with her dad. The brothers went to the banks and had her removed from the accounts, and themselves added, without her father's knowledge. They say the banks made them take her off, and "roll over" the joint ststus to them. the two questions are:

Are they lying that they had to take her off joint accounts?

Is this a case of abuse of the Power of Attorney

Asked on 5/04/13, 5:20 pm

1 Answer from Attorneys

Richard Bryan Richard Bryan Attorney PC

In New York a joint bank account can mean two different things. Husband and wife, for example, have joint bank accounts. This is "joint tenants with rights of survivorship." At the death of one person, the other becomes sole owner. Then there's a "joint" bank account as between a principal and their Power of Attorney. This is known as a "convenience account." The bank account is titled in joint names for the sole purpose of making it easier (more convenient) to perform banking activities. At death of the principal, a convenience account, even though titled "jointly," does not pass to the surviving owner. The account becomes part of the decedent's estate. Unfortunately, bank officials and people get these issues confused quite often and give out incorrect advice. However, assuming the bank correctly noted the account as a "joint convenience account," rather than "joint with rights of survivorship," then it was proper for the new agent to replace the old agent, your wife, as joint owner. This would not be an abuse of the power of attorney without other facts.

I think it's a mistake not to hire a local lawyer to review the situation and ask more questions as to dad's capacity to execute a new Power of Attorney, and at the very least, send a letter to your wife's brothers letting them know that they had better keep careful records of their actions as power of attorney, because you will be demanding an accounting if necessary.

Good luck.

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Answered on 5/05/13, 7:29 pm

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