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Know the Law: Does Sister Have Mom's Best Interest in Mind?

Written by: Henry R. Klementowicz

Published in the Union Leader (11/6/2017)

Q: My elderly mother signed a document naming my sister as power of attorney, but I’m not sure my sister is looking out for her best interests. What can I do?

A: Elder abuse cases are a significant part of my practice, and it is not uncommon in those cases to discover that someone acting under a power of attorney has not acted in the best interests of the principal. In such cases, the law in New Hampshire provides powerful protections for the principals and their loved ones.

When a person acts under the power of attorney for a person, a “fiduciary” relationship is created. Under the fiduciary relationship, the agent is legally required to act in the principal’s best interest. The agent must not commingle her funds with the principal’s funds, and should be prepared to account for and justify every financial transaction she makes on the principal’s behalf.

Family members and other concerned parties have legal recourse in New Hampshire to make sure the agent is acting appropriately. Under RSA 506:7, the agent, the principal, the spouse, child or parent of the principal, a person who would inherit money from the principal, a person named the principal’s will or some government agencies can file a petition in either the probate division of the circuit court or the superior court.

The petition can be an effective vehicle for the concerned person to seek an accounting from the principal, and to demand an explanation of how the moneys of the principal were spent. The law also allows the court to determine that an agent has violated her fiduciary duties, to determine the legality of acts, proposed acts, or omissions of the agent, to terminate a power of attorney or to determine that certain gifts or other transactions are authorized. The petition is a powerful tool to ensure that the elderly and other persons who have given a power of attorney are protected.

Unfortunately, situations like the question are all too common, especially where there is family discord. If you believe that a close relative is being exploited by her agent, or if you are an agent served with a power of attorney petition, it is important to consult with an experienced counsel who is familiar with these types of cases.

Henry Klementowicz can be reached at henry.klementowicz@mclane.com.

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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