(Warning: Typos Intact, Not Legal Advice)

My dad passed. Spouse had prior POA & is not sharing info my brother needs for executor duties per a Will. What to do?

A POA for assets was drafted at the time will was done, w/brother listed as executor. Dad remarried, had dimentia & fell, then went to AL. I think his spouse left him alone at the time & went to work w/o arranging oversight.Another POA was drafted around that time,w/spouse. Fast fwd, Dad passed 7/17 from another fall at AL. Spouse didn’t give a copy of POA til after dad passed & wasn’t/isn’t upholding fudiciary duties. For example, spouse didn’t pay Neptune Society balance due for cremation that was set up before dad passed. We had to pay it after bc spouse refused. Also, we took over managing Social Security & VA benefits bc spouse wasn’t paying AL facility @one point.VA had contacted us bc dad was about to be evicted! Spouse never gave accounting of where the monies went (in addition to other things, ie stimulus checks, wallet, taxes, etc.). Plus, back pay to AL had to be repaid from Dad’s benefits, it was like he paid twice & that was after spouse agreed to make payments for it & never did! In sum, how do we get what we need to execute the will? Spouse agreed to manage affairs prior when the POA was signed & notorized…isn’t this abuse of the POA?

Answer: My advice would be to hire a skilled litigation probate attorney. To get answers to all the questions you pose, you’ll need to thoroughly investigate the facts and circumstances surrounding your father’s last years of life. If the surviving spouse is uncooperative, the court process will be necessary to obtain this information.

You may want to allege a breach of fiduciary duty, which would allow you to initiate discovery. Through discovery, you can compel the surviving spouse to reveal details of what occurred, using subpoenas if necessary, to uncover the actual situation.

In most states, powers of attorney require the person acting under the power of attorney document—known as the agent or attorney-in-fact—to maintain books and records that account for their actions. Failing to keep these records is typically considered a breach of fiduciary duty in most states.

It’s also important to be aware that claims for breach of fiduciary duty are subject to very short statute of limitations periods. When you mention “717,” I hope you mean July 17th of 2024, not July of 2017. If you mean July of 2017, unfortunately, you may be out of luck. However, if you mean July of this year, now is the time to retain counsel and begin investigating.