Your mother signed a power of attorney three years ago naming your brother. Since then her bank statements have gone to his address. The brokerage account is smaller than it was. A deed recorded last spring added his name to her house. When you ask, he says that Mom wanted it this way, and that he does not have to show you anything.
He may be right about the second part, at least for now, and that surprises most families. A power of attorney gives one person broad control over another's finances with almost no routine oversight. Florida law does impose strict duties on the person holding it and gives family members ways to enforce them. Those tools work better the earlier they are used, because money spent is harder to recover than money frozen.
What does a power of attorney allow an agent to do?
A power of attorney is a document in which one person, the principal, authorizes another, the agent, to act for the principal in financial and legal matters. A durable power of attorney remains effective after the principal loses capacity, which is usually the reason it was signed. The agent's authority extends only as far as the document grants it. Typical powers include paying bills, managing accounts, and selling property. No power of attorney allows an agent to make or change the principal's will, and Florida requires extra formality before an agent may take certain other actions.
What duties does the agent owe?
An agent is a fiduciary. The Florida Power of Attorney Act requires the agent to act only within the authority granted, in good faith, and in a manner consistent with the principal's reasonable expectations and interests. The agent must act loyally for the principal's benefit, avoid conflicts of interest that impair that loyalty, keep the principal's property separate, and keep a record of every receipt, disbursement, and transaction. The agent must also try to preserve the principal's estate plan to the extent the agent knows of it. "Mom wanted it this way" is a claim about her wishes. It does not replace these duties, and it has to be proven.
Can an agent make gifts or change who inherits?
Only with specific authority, given in a specific way. Under Florida law an agent may make gifts, create or change rights of survivorship, change beneficiary designations, or create or amend a trust only if the principal signed or initialed next to each of those powers in the document. General language authorizing the agent to do anything the principal could do is not enough. Even where the power to make gifts exists, the statute limits the amounts unless the document says otherwise, and the fiduciary duties still apply. An agent who adds his own name to an account or a deed, or directs the principal's assets to himself, has engaged in self-dealing, and courts look hard at whether the document authorized it and whether the principal understood it.
Who has the right to demand answers?
Fewer people than most assume. An agent must account when a court orders it, or when the principal, a guardian, another fiduciary acting for the principal, or a government agency protecting the principal asks. A sibling with no formal role has no right to the records merely by requesting them. What the sibling does have is access to the court. Florida allows a petition by the principal, the agent, a guardian or other fiduciary, and any other interested person who shows an interest in the principal's welfare and a good-faith belief that the court's intervention is necessary. A son or daughter with specific concerns ordinarily meets that standard.
What can a court do while the parent is living?
It can order an accounting, review the agent's conduct, suspend or terminate the agent's authority, and order property returned. An agent who violates the Act is liable to restore the principal's property to what it would have been, and the statute provides for awards of attorney's fees and costs in these proceedings. A court can act on short notice when assets are being moved. Where the parent may lack capacity, a guardianship petition is another route, and filing one can suspend the agent's authority while it is pending. Florida also permits an injunction for the protection of a vulnerable adult against exploitation, which can freeze assets quickly. Exploiting an elderly person is a crime in Florida, and reports can be made to law enforcement and to the state's abuse hotline.
What changes after the parent dies?
The power of attorney ends at death, and so does the agent's authority. The personal representative of the estate then has the right to demand an accounting from the former agent and to sue to recover property that was wrongly taken, for the benefit of the estate. If the former agent is also the person named to administer the estate, the conflict is plain, and beneficiaries can ask the probate court to appoint someone neutral. Transfers the agent made, such as retitled accounts, new beneficiaries, and deeds, can be challenged, as can documents the parent signed under the agent's influence. Probate deadlines are short, so these claims should be raised early in the estate.
What evidence matters, and where do you start?
Get a copy of the power of attorney and read what it authorizes. Collect account statements from before and after the agent took over, and look for patterns: cash withdrawals, transfers to the agent or the agent's family, new cards, changed mailing addresses. Pull the recorded deeds. Note the parent's medical condition on the dates of the significant transactions. Speak with the parent alone if you can, and keep a dated log of what you observe. Write to the agent and ask for an accounting; a refusal is evidence too. Financial institutions may be able to delay suspicious transactions involving an older customer when concerns are reported. Then decide, with advice, which court proceeding fits.
Salomon Smith PLLC represents family members, beneficiaries, and fiduciaries in disputes over powers of attorney, trusts, and estates across Florida. If a parent's finances are being handled in a way that concerns you, call (305) 297-1018 for a free consultation, or learn more about our trust and estate litigation practice.
This article is for general informational purposes only and is not legal advice.