Craig Reaves, past president of the National Academy of Elder Law Attorneys, practices elder law in Kansas City, Mo., and fields occasional questions from New Old Age readers.
On the topic of disclosures, a reader inquired about what to do about her family of eight siblings and one elderly father. Long ago the siblings got together and put two of the sisters in charge of their father, largely because his will and other directives advised as much. As a result, they were granted power-of-attorney and access to his accounts.
Now, the reader has discovered that they aren’t forthcoming with information about their father, his care, and his finances. The reader is worried that she won’t hear anything until there’s a demand for money to care for their elderly father, and, perhaps, that the original funds weren’t adequately used.
The response of Craig Reaves is tailored to the reader’s unique situation, but his advice is applicable for many in this same or similar position. As a preliminary caveat, there are specific state laws (i.e., like those regarding “powers of attorney”) that govern the authority, responsibility and liability of agents and fiduciaries.
Read Craig Reaves’ enlightening response in his original post.
Mr. Reaves points out that usually the attorney-in-fact owes a fiduciary duty to the principal (their father, in this case), not his heirs (the rest of the family). Unless the law or the document requires disclosure, an attorney-in-fact is usually not required to share any details with the heirs. The attorney-in-fact may even be prohibited from doing so.
He also suggests that if directly approaching the attorneys-in-fact brings no satisfaction, (i.e attorney-in-fact refuses to be provide information about their father, his care, and his finances or the family is concerned that the attorney-in-fact may be taking advantage of theif father), the concerned family members can petition the probate court in their father's county to appoint a or conservator for him.
The court will have oversight over their father's financial and personal affairs and also give the family the same information. And it will provide the family with a forum in which you can air grievances about their father’s situation. The court will ensure that their father is well taken care of and that he is not taken advantage of.
This can be an expensive solution, though, and it is probably a last resort. Perhaps the mere threat of going to court will convince the attorney-in-fact to be more forthcoming about what they’re doing.
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Reference: The New York Times – The New Old Age Blog ( January 18, 2012) “Ask the Elder Law Attorney: Disclosures and Loans”