Brother became POA for mother with Alzheimer’s and transferred ~$500k to himself — can this be elder financial abuse if he claims it was ‘gifts’?”
Location: New York State
An 86-year-old widow has 4 adult children (3 sons, 1 daughter). She was diagnosed with Alzheimer’s and qualified for 24/7 in-home care.
Originally, she named her daughter as Power of Attorney. One of the sons became angry that his sister was “in control,” took their mother to a lawyer and allegedly convinced her that the daughter was stealing from her and that she needed to switch POA to him. At that point, the mother already had cognitive decline and confusion and agreed.
After becoming POA, the son had the mother sign over roughly $500,000 in checks to him over about 2 years, which he allegedly gambled away. He also opened a joint bank account with her and used her ATM card. He did not sign checks as POA — the mother physically signed them herself — but she reportedly had significant memory impairment and would sign anything put in front of her. She could not even complete a clock drawing test at that time.
There is evidence that the daughter, while previously acting as POA, never took money for herself. Before the Alzheimer’s progression, the son had never received gifts anywhere near this size.
My question is: in New York, could this rise to criminal elder financial abuse, exploitation, larceny, or breach of fiduciary duty by a POA, even if the son argues the money was all “gifts” from his mother? Does someone acting as POA have a fiduciary obligation to stop taking money from a cognitively impaired parent rather than facilitating large transfers to themselves?
**\*\*\*\*Part 2 / Additional context:** Once the daughter realized what had happened with the POA and also saw that her brother was not facilitating the 24/7 home care their mother qualified for, she petitioned the court for third-party guardianship. The son was reportedly leaving their mother alone overnight and for extended periods during the day despite her condition and care needs. The court granted third-party guardianship relatively quickly.
The appointed guardian’s position is that aggressively investigating the son right now could upset and agitate the elderly mother (the guardian’s ward), and that the daughter will have to wait until her mother passes away to fully pursue the issues.
Does the fact that third-party guardianship was granted relatively quickly suggest the court already had serious concerns about the son’s conduct/capacity to care for her?
Is it really true that this cannot be investigated until the mother dies, or can APS, law enforcement, the DA, or another authority investigate financial exploitation while she is still alive?
**Additional question:**
How are cases like this usually proven if the elderly person physically signed the checks herself?
The concern isn’t forgery, it’s whether someone with diagnosed Alzheimer’s truly understood what she was signing or the amounts involved. The massive “gifts” only started after cognitive decline and were far outside anything she had ever given before.
Also, if someone is acting as POA, don’t they have a fiduciary duty to protect the person’s finances rather than continue accepting unusually large checks from someone they know is cognitively impaired? Or can they simply argue, “She wanted me to have it, I’m her son!.” The line becomes blurred. Morally, everyone knows this is wrong. But how can it be proven that the incapacitated person was not lucid each time she signed a check (or at least a majority of the time)?