I went to the closet and got down the old cookie tin where Mama kept her papers her whole life, and near the bottom, underneath expired coupons and old church programs, I found her will, drawn up with an attorney four years before she died, leaving her house and accounts split evenly between my brother and me.
That will had never been revoked. What had happened instead, sometime in those last two years my brother handled her banking “to take it off his plate,” was that her accounts had quietly been retitled with him as sole owner through a payable-on-death designation he’d apparently arranged using the power of attorney she’d given him for convenience, not for that.
I called an elder law attorney the next morning, and she explained something I hadn’t known — every state requires an agent acting under power of attorney to maintain a full accounting of all transactions made on the principal’s behalf, available to interested parties like myself upon request, specifically to prevent exactly this kind of self-dealing.
She wrote to my brother formally requesting that accounting, citing the statute directly.
“An agent acting under a power of attorney owes a fiduciary duty to the principal and must maintain records of all transactions, disclosing them upon reasonable request by the principal’s heirs or personal representative. Failure to provide such an accounting may give rise to a claim for breach of fiduciary duty.”
My brother didn’t have a good accounting to give. What he had was two years of moving Mama’s money and retitling her accounts using authority she’d given him to pay her bills, not to quietly become the sole owner of everything she had while she was still alive to notice, had she been well enough to.
The attorney filed a claim on the estate’s behalf within the month. It took most of a year, uncomfortable depositions and all, but the court ultimately found the retitling had exceeded his authority under the power of attorney and ordered the accounts restored to the estate, to be split according to Mama’s actual will, the one she’d signed with her own hand and never once changed.
My brother and I don’t talk much these days, and I’ve made a kind of peace with that. Six years of turning her every two hours never needed defending, not really. Mama had already defended it herself, quietly, at an attorney’s office, years before either of us thought we’d need the paperwork to speak for her. It just took an old cookie tin, and a statute nobody thought to check, to finally let her voice be heard.