What can I do if a family member uses their status as my Power of Attorney to take over my bank account?

Dear Marjorie:

You sound like you are the victim of financial exploitation - your son appears to have used your impairment as an opportunity to gain money. Unfortunately, you are not alone. Older Americans are financially abused by family, strangers, and businesses in the amount of $2.9 billion a year, according to a MetLife study this year. Financial abuse seems to be increasing, since the amount taken is 12% higher than the same study's findings in 2008. Since most people do not report financial abuse, the actual cost to older Americans is probably higher.

Fortunately, there are things that you can do to help get your money back and to minimize the chance that your son does this to you again.

First, call the police and make a report. If your son took your money without your permission, that is theft. Because you appear to have been a vulnerable adult when the theft occurred, your son could also be guilty of criminal financial exploitation under Minnesota Statutes Section 609.2335. If the police are unwilling to do anything about it, insist on getting a police report, so that you may report the losses on your next IRS tax filing as a loss (if you file taxes). The police report will also help protect you from a Medical Assistance ineligibility period if you apply (or currently receive Medical Assistance) within five years of the theft - it can be proof that you did not give the money to your son. The police report can also be used in a future civil lawsuit against your son for the return of the money. In addition, if the police will not pursue it, you can speak to your local prosecuting authority (e.g. city or county attorney's office) to see if they would be willing to investigate and charge your son.

Second, since your son has proved that he cannot be trusted, you should revoke the Statutory Short Form Power of Attorney (SSFPOA). Your son cannot use the authority granted to him as your agent to take your money and use it as he wishes. He cannot use it against your wishes; you have not given up any of your own authority to act by having a SSFPOA. If your wishes were not known and could not be ascertained while you were impaired, your son still had a duty to use your money as a reasonably prudent person in your position would use your money. This certainly does not mean he could take the money for his own use. A SSFPOA is probably the most common type of power of attorney in Minnesota. To revoke it, you must fill out a revocation of the SSFPOA. The revocation states that you are revoking the SSFPOA that named your son as your agent (aka "attorney-in-fact") on such-and-such a date. You must sign the revocation in front of a notary public. I recommend that you sign many originals, so that you can not only give one to your son, you can give one to your bank and anyone else that may have been dealing with your son as your agent. In fact, in order to properly revoke a SSFPOA, you must deliver the signed revocation to your agent and whomever he has been dealing with as your power of attorney. Of course, keep a copy for yourself.

If you have named your son on any other documents that give him some authority to make decisions for you, you should also revoke those. For example, if you have named him as your healthcare agent in a Healthcare Directive, you should create a new Healthcare Directive without your son named as your agent and give the directive to everyone who has your old directive. This has the added benefit of not giving your son a leg up on being named your guardian, should he try to petition for guardianship over you.

In the same vein, since your son cannot be trusted, you may wish to remove his name as a beneficiary on any assets you may have, and you may wish to review your Will (if you have one) to disinherit him.

Third, your actions might stir your son into trying to assert control over you by petitioning the Court for guardianship and/or conservatorship over you, alleging that you cannot take care of yourself or your affairs. You may wish to ask your doctor to give you a written statement that you are competent to understand your affairs and are able to take care of yourself. If he does petition the Court, you will get notice and you have the right to a court-appointed attorney.

Fourth, if you have given him any keys or other access to your home, you can change the locks. If you live in an apartment building, you can ask the management to put him on a no trespassing list, if you do not want him at your apartment. Similarly, if you own your own home (or own a life estate interest in it), you control who is allowed in it. If you do not want you son at your home, you do not have to let him in. You can call 911 and tell the police that he is trespassing if he does not leave after you told him to leave. Further, if he continues to come to your home or harass you in other ways (e.g. incessant phone calls or contacts), you can file either a Harassment Restraining Order (HRO) or an Order for Protection (OFP) against him. If the court grants these, the police can immediately arrest your son if he is anywhere the order says he cannot be.

Fifth, if your son refuses to give you back the money, you can sue him in civil court. If you file a case in conciliation court before Aug. 1, 2012, the amount he took must be less than $7,500. If you file the case in conciliation court on or after Aug. 1, 2012, the amount he took must be less than $15,000. Conciliation court is small claims court and you do not need an attorney to represent you. Also, the filing fee is smaller than district court. No matter which court you decide to sue him in, if you cannot afford the filing fee, you may qualify for the fee waiver if your income is low enough or if you receive certain government benefits based on need. You can sue for just the return of the money, but Minnesota law also allows you to sue for attorney's fees and for damages up to three times your compensatory damages (your actual damages) or $15,000, whichever is greater. Minnesota Statutes Section 626.557 subdivision 20. Under this statute, you would have to prove that your son financially exploited you by failing to use your financial resources (the vulnerable adult's resources - you were vulnerable because you were in the hospital and impaired) to provide food, clothing, shelter, health care, therapeutic conduct or supervision for you, and the failure resulted or is likely to result in detriment to you. If your son willfully used, withheld, or disposed of your funds or property, the statute states this is also financial exploitation. If he acquired possession, control, or interest in your funds or property via the use of undue influence, harassment, duress, deception, or fraud, this is also financial exploitation. Minn. Stat. § 626.5572 subdivision. 9 (a) and (b). It appears that your son has done these things by refusing to give you your money back. He certainly is not using the money for your benefit. You might also sue him for breach of fiduciary duty because of his misuse of the SSFPOA.

These are all options that you can do to respond to your son's breach of your trust. At the very least, it seems to me that your SSFPOA should be revoked so he cannot do this to you again.

Senior Legal Line is a legal question and answer line for Seniors.

This column is written by the Senior Citizens' Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing to: Senior Citizens' Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprints by permission only.