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Question:

My brother is abusing his durable power of attorney with my father, coercing him to do things he does not want to do. He is also taking over part of his business, including his biggest longstanding client. I don’t think my father will voluntarily remove him and he is not incapacitated. My brother has become very manipulative due to his wife’s family and my father cannot stand up to him. My father is 92 years old and recently got Covid. Despite being on maximum oxygen and nearly going on a ventilator, he survived and is doing well. Can I go to court and ask for my brother to be removed? Or can Protective Services help me?

Response:

I’m glad to hear your father recovered from Covid. This is a difficult situation because your father has capacity. As a result, the normal route of seeking court appointment of a guardian or conservator probably is unavailable. You may be able to seek a restraining order against your brother. But I think calling protective services, as you suggest, would be the easiest and quickest approach. At least that would put your brother on notice that someone is looking. And the protective services agency may help collect evidence that could be used in a later action.

Unfortunately, your only option may be to prove undue influence after the fact, after your father has passed away. Then you would have standing to intervene in the probate of his estate. That can involve expensive and lengthy litigation, but you might be able to put the burden of proof on your brother to show that there was no undue influence. It would make sense for you to consult with an attorney who could advise you based on more specifics about the situation and your state’s laws.

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