What Can a Family Member Do with Agent Under Durable Power of Attorney Won’t Share Information?

 In Durable Powers of Attorney

Question:

I have an elderly father with late-stage Alzheimer’s Disease. My sister has POA for him. I asked her 2+ years ago for information on his assets and investments because I wanted to be sure someone is looking out for the best investment options available, and my sister has no real financial expertise (nor do I). I told her that I wanted to let the person who gives us investment advice to weigh in on whether or not he thought my dad was positioned correctly with his investments and if not what we might consider changing. My sister said she would send me the information but two + years later here I sit. I have reminded her several times of her promise to get me the info, but she always pleads “I am too busy right now.” I wonder if I have any legal standing to get this information. Also wondering if you have any suggestions as to how to approach my sister. Currently (or the last I was told) my brother-in-law (who also has no real financial background) was “watching” my dad’s investments.

Photo by eberhard grossgasteiger on Unsplash

Response:

I agree that it’s important for those managing another person’s funds to get professional investment advice. Not only will this help ensure against making bad decisions, but it also protects the fiduciary, whether an agent under a durable power of attorney or a trustee, from claims that they made investment mistakes. In addition, we always counsel transparency when it comes sharing information about assets the agent is managing. (See my first rule of thumb in this blog post about choosing an agent under a durable power of attorney.) This prevents malfeasance on the part of the agent and more often suspicion of malfeasance. It may well be that your father’s investments are fine as they are, but you have no idea unless you can get a statement and share it with your financial advisor — a seemingly simple request.

But what do you do when your sister doesn’t comply with your request for transparency? Unfortunately, you don’t have any direct legal rights. You could petition the local probate court to be appointed your father’s conservator and to remove your sister as his agent, but this will be an uphill battle. The court is likely to defer your father’s choice of agent unless you can show actual malfeasance on your sister’s part. The process, if you were to pursue this route, would likely be costly and time consuming and make your relationship with your sister more difficult. On the other hand, you would likely gain access to account information through the process.

You could also wait until your father’s death and seek information at that time. As a beneficiary of his estate, your legal right to information would be more clear. But it still wouldn’t be direct. Your father’s executor or personal representative would have the right to information, not you.

So, unfortunately, I think you could explain to your sister that all you’re asking is for copies of recent bank and investment account statements. It’s hard to argue that she’s “too busy” to make copies or even to simply send you the originals. She could easily take pictures with her smart phone and email or text them to you.

This article provides a bit more information on the duties of agents or “attorneys-in-fact” under durable powers of attorney to disclose information.

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