Unauthorized withdrawl I live in Massachusetts, my mother, 81, has dementia.

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Unauthorized withdrawl
I live in Massachusetts, my mother, 81, has dementia. I have her durable power of attorney. She’s gone to visit with my brother in North Carolina and he has made $2100 in withdrawls from her ATM in the last 10 days, bottoming out her checking account–possibly with my mother’s consent. If she needs to apply for medicaid in the next 5 years, someone will be looking for that money. Do I have the legal right to demand that my brother give the money back?

2 thoughts on “Unauthorized withdrawl I live in Massachusetts, my mother, 81, has dementia.”

  1. Re: Unauthorized withdrawl
    If based on your mother’s condition you believe that your brother has exercised undue influence, you can demand the money be returned. Do so by certified mail. If your brother refuses to return the money, you have an option of taking legal action to recovr it. If he took the money for things for your mother or to care for your mother, require copies of receipts so you have the proof the money was not a gift to him.

    If your mother spent the money on her trip for food, shopping entertainment, it is not a gift to your brother.

    I suggest you take greater control of your mother’s finances. To do so, I suggest you contact the attorney who prepared the Power of Attorney or an elder law attorney.

    Please feel free to call me if you have more questions.

    Good Luck.

    Jonathan Roth
    Donovan Hatem LLP
    Two Seaport Lane 8th floor
    Boston, MA 02210

  2. Re: Unauthorized withdrawl
    This is a tricky, and very fact-specific — question. A person with dementia may genuinely wish to make a gift and have the ability to do so. At the same time, she may be subject to undue influence.

    If you think, based on her physician’s opinion and your knowledge of the parties, that your mother was the victim of undue influence, you certainly have the right to demand repayment. Do so in writing, by certified mail, so you can document your efforts. Further legal action is an option if that does not work. If you can document that you made reasonable efforts to have the funds returned, MassHealth is not likely to penalize your mother. You also may need to more aggressively take control over her finances.

    Since you are in the western part of the state, I strongly suggest you contact the attorney who prepared the power of attorney or an experienced elder law attorney in your area for further guidance as soon as possible.

    Alexandra Golden
    Golden Law Center
    200 Highland Avenue, Suite 302
    Needham, MA 02494

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