[WI] Can I challenge my brother’s misuse of POA and recover assets transferred from our mother?

WI Family Law

Jessica B

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Based on your situation, there are several legal arguments and considerations in Wisconsin that could potentially support your case:

Power of Attorney (POA) Misuse: In Wisconsin, a person holding a POA is legally obligated to act in the best interest of the principal (your mother)(WI Stat § 244.14 (1)(a)). If your brother has been using his position to benefit himself financially, this could be considered a breach of fiduciary duty.

Breach of Fiduciary Duty: As a fiduciary, your brother is required to manage your mother's assets responsibly and in her best interest. Transferring property into his name or mismanaging funds could be seen as a violation of this duty.

Undue Influence: If your brother used his position to unduly influence your mother into making financial decisions that benefit him, this could be challenged legally.

Property Transfer Issues: Any transfer of property that was not authorized by the rightful POA holder (you, in this case) could be contested, especially if it was done without your knowledge or consent.

Here's a structured approach you can consider:

Gather Evidence
Start by collecting all relevant documents that show your authority over financial matters, such as the POA documents. Also gather any evidence of property transfers or financial transactions your brother conducted without your consent. This might include bank statements, property deeds, or any correspondence related to these transactions.
Consult an Attorney
Given the complexity and seriousness of the situation, consulting with an attorney who specializes in elder law or estate planning in Wisconsin would be beneficial. They can provide specific advice on how to proceed based on the evidence you have and the laws applicable in your area.
Consider Legal Action
If your brother has indeed breached his fiduciary duty, you may have grounds to take legal action. This could involve filing a lawsuit for breach of fiduciary duty or undue influence. An attorney can guide you through this process and help you understand the potential outcomes.
Mediation or Arbitration
Before escalating to court, you might consider mediation or arbitration as a way to resolve the dispute. These methods can be less adversarial and might lead to a quicker resolution.
Protect Your Interests
While addressing the current issues, ensure that your interests and those of your mother are protected moving forward. This might involve revisiting the POA arrangements or setting up additional safeguards to prevent further unauthorized actions.

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90 yo mother, has dementia issues. 2 children. Trust POAs have been established for years — my brother health, myself finances. I find out my brother (health) has been dealing with the finances unknown to me for years and has profited handsomely.

Lexi, Chatbot

I'm sorry to hear about the challenges you're facing with your mother's situation. Can you tell me if there are any specific concerns you have regarding your brother's management of the finances?

He had some property transferred into his name, had his name on her bank accounts. There's probably a few million involved here. I am disabled (MS) and right now I had to sell my big property last year, unable to work anymore, incurring a 113K capital gain penalty that I cannot pay and that would wipe me out. I'm 63, bro is 61. It gets hairier — he is still a regular cocaine user. Not an extreme amount but who knows if it will escalate?

Lexi, Chatbot

Have you had any discussions with your brother about his handling of the finances, and if so, what was his response?

He plays dumb. He knows I know that he's done some things that aren't cool so plays dumb. God forbid I used some of the assets to get me out of this jam — there's plenty of money there. When confronted I asked him, did you not read the POAs that clearly state I was supposed to be in charge of finances? And he stated, I should read all that? And truth be told he has never read a book in his life so playing dumb is easy for him. He also married into a very wealthy situation so he'll never hurt for money.

Jessica B

Hello! My name is Jessica and I am a licensed attorney that will be assisting you with your question.

I understand you're dealing with a situation where your brother, who is supposed to handle health matters, has been managing your mother's finances without your knowledge, leading to significant financial implications. Have you considered any legal steps to address this situation?

Not yet.

Jessica B

Thanks for sharing that. Could you let me know where you're located? This can help me understand the legal context better.

Milwaukee, Wisconsin area.

Jessica B

Got it, thanks. Could you tell me when you first discovered your brother was handling the finances?

Maybe 5 years ago. My wife's family saw legal docs — some Florida property that we were aware of. When she asked him about that Florida property he acted like he didn't know what she was talking about. Soon thereafter records were found of this property in his and his wife's name. When confronted he acted like he didn't know. I'm sure lots of situations like that. He handled selling maybe 5 duplexes and a 4 family or so without my knowledge. I'm sure much more. Again, I'm disabled with MS, my wife has stage 3 congestive heart failure and he's very financially secure.

Jessica B

Thank you for sharing those details. It sounds like a very challenging situation, especially given your health circumstances. Could you tell me if there are any other family members involved or aware of this situation?

None. Only myself, bro, mother left. It's not a good scene. Why would it matter when there's plenty of money there and a small withdrawal would solve my issues and I was designated to be in charge of the finances.

Jessica B

Based on your situation, there are several legal arguments and considerations in Wisconsin that could potentially support your case:

Undue Influence: If your brother used his position to unduly influence your mother into making financial decisions that benefit him, this could be challenged legally.

Here's a structured approach you can consider:

Gather Evidence
Start by collecting all relevant documents that show your authority over financial matters, such as the POA documents. Also gather any evidence of property transfers or financial transactions your brother conducted without your consent. This might include bank statements, property deeds, or any correspondence related to these transactions.
Consult an Attorney
Given the complexity and seriousness of the situation, consulting with an attorney who specializes in elder law or estate planning in Wisconsin would be beneficial. They can provide specific advice on how to proceed based on the evidence you have and the laws applicable in your area.
Consider Legal Action
If your brother has indeed breached his fiduciary duty, you may have grounds to take legal action. This could involve filing a lawsuit for breach of fiduciary duty or undue influence. An attorney can guide you through this process and help you understand the potential outcomes.
Mediation or Arbitration
Before escalating to court, you might consider mediation or arbitration as a way to resolve the dispute. These methods can be less adversarial and might lead to a quicker resolution.
Protect Your Interests
While addressing the current issues, ensure that your interests and those of your mother are protected moving forward. This might involve revisiting the POA arrangements or setting up additional safeguards to prevent further unauthorized actions.

I hope this stays on my computer so I can keep it and maybe print it out. I figured as much, but POA misuse — I would think anything that was done financially by the person in charge of health would be misuse. Here's where it gets really messed up for me and my wife. Like I said I had to sell this large property I had for 17 years, just couldn't do it anymore. Now I have 113K in capital gains I can't pay. Being it looks like we made a lot of money on the sale last year, we actually lost 110K plus. Now my wife's Medicare increased 500% because it looks like we made a lot of money when it's just the opposite.

Jessica B

I understand how overwhelming this situation must be for you, especially with the added financial stress from the capital gains tax and Medicare increase.

In addition to pursuing the fiduciary issues with your brother, you should also speak with a tax professional or CPA immediately about:

Whether your cost basis was calculated correctly on the sale.
Whether you qualify for any exclusions or loss offsets.
Filing an appeal or reconsideration for the Medicare IRMAA increase (there is a formal appeal process when income spikes due to one-time events like property sales).

One last thing — what type of attorney would I consult?

Jessica B

For your situation, you should consult:

An elder law attorney — for POA misuse, fiduciary breach, and protecting your mother.
A probate or estate litigation attorney — if you need to sue for breach of fiduciary duty or recover transferred property.

Many firms in Wisconsin handle both elder law and estate litigation. When calling, specifically ask if they handle “fiduciary litigation” or “power of attorney abuse cases.”

Thank you, Michelle!

Jessica B

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