Families frequently discover the problem only after the funeral: accounts that should have held substantial balances are nearly empty, and one relative was handling everything under a power of attorney. New York gives the estate real tools to find out what happened.
What you need to know
- An agent under a New York power of attorney is a fiduciary. They must act in the principal’s interest, keep records, and avoid self-dealing.
- A power of attorney ends at death. Anything the agent did afterward was without authority.
- New York’s statutory form requires a separate gifts rider or express authority for major gifts — an agent generally cannot make substantial gifts to themselves on general authority alone.
- The estate’s fiduciary can bring a discovery proceeding in Surrogate’s Court to examine the agent under oath and to recover property belonging to the estate.
- An agent who cannot account for transfers may be ordered to return them, depending on the facts.
What an agent under a power of attorney actually owes
A power of attorney is a grant of authority, not a gift of the principal’s property. The person holding it — the agent, or attorney-in-fact — is a fiduciary of the person who signed it. New York’s statutory framework spells out obligations that many family-member agents never realize they had:
- Act according to the principal’s reasonable expectations and otherwise in the principal’s best interest
- Avoid conflicts of interest and self-dealing
- Keep the principal’s property separate from the agent’s own
- Maintain a record of all receipts, disbursements, and transactions
- Cooperate with anyone authorized to make health care decisions
- Produce records when a person entitled to them asks
Two of these do most of the work. The obligation not to commingle means a child who moved a parent’s money into their own checking account has a problem even if every dollar was spent on the parent. The obligation to keep records means the agent, not the family, carries the burden of explaining where money went.
The gifting limits
This is where most cases turn. New York’s statutory short form power of attorney gives an agent broad authority over financial transactions, but making substantial gifts — including transfers to the agent personally — generally requires express additional authority, historically through a separate gifts rider and more recently through a modifications section signed with the required formalities.
An agent who transferred the house into their own name, added themselves to accounts, or moved funds to their own children usually needs to point to specific authority for it. General authority to handle finances is not the same thing as authority to give the finances away.
A power of attorney dies with the principal. Any check written, account closed, or transfer made after the date of death was done without authority, regardless of what the document said. Bank records showing activity after the death date are among the clearest evidence in these cases.
Recognizing the pattern
Not every unexplained withdrawal is misconduct. A caregiving child often pays for things nobody else saw. What raises questions is a pattern:
- Account balances that fell far faster than the person’s expenses could explain
- Cash withdrawals in round numbers, repeated, with no corresponding purchases
- Transfers to the agent’s own account, or to the agent’s spouse or children
- A deed recorded during the final years transferring real estate to the agent, often for no consideration
- The agent added as a joint owner on accounts, or as a payable-on-death beneficiary
- A new power of attorney signed when the person was already declining, replacing one that named someone else
- Other family members cut off from information, or from the person themselves
- Credit cards or a home equity line opened in the person’s name late in life
The strongest cases are usually assembled from bank records rather than from what anyone remembers. Statements, canceled checks, wire records, and the deed history tell a story that argument cannot.
Who can act, and how
Here is the structural point families miss: a claim for money taken from the decedent during their lifetime belongs to the estate, not to individual relatives. An aggrieved sibling generally cannot sue in their own name for what was taken from a parent. Someone has to be appointed by the Surrogate’s Court first.
That means the first step is often getting letters testamentary or letters of administration issued to a fiduciary who is willing to pursue the matter. If the suspected agent is also the nominated executor, that presents an obvious conflict, and the court may be asked to appoint someone else, to limit that person’s powers, or to appoint a temporary administrator for the limited purpose of investigating.
The discovery proceeding
New York’s Surrogate’s Court has a purpose-built mechanism. An estate fiduciary may petition to examine a person believed to be holding or to have improperly obtained estate property. The court can order that person to appear and testify under oath, and to produce documents.
The proceeding has two phases. The first is inquisitorial: the target is examined about what they did and why, before anyone has to prove a case. If the examination shows that estate property is being withheld, the proceeding moves to a phase where the court can order it turned over.
This is a meaningful advantage over ordinary civil litigation. The estate can compel testimony and records early, without first pleading a detailed complaint about facts the family cannot yet see.
Compelling an accounting from the agent
Separately, New York allows certain interested parties — including a personal representative of a deceased principal — to demand that a former agent account for their handling of the principal’s property. An agent who kept no records is in a poor position when that demand arrives, because the recordkeeping obligation was theirs from the start.
| Tool | What it does | Typical use |
|---|---|---|
| Discovery proceeding in Surrogate’s Court | Examines a person under oath and can compel turnover of estate property | Assets the family believes were taken and are identifiable |
| Proceeding to compel the agent’s accounting | Forces a former agent to explain every transaction | Years of activity with no records produced |
| Objections to the executor’s accounting | Challenges how the estate’s own fiduciary handled matters | The suspected agent is also serving as executor |
| Application to limit or remove a fiduciary | Restricts powers or replaces the fiduciary | Conflict of interest, or assets at risk |
| Restraining relief | Freezes accounts or blocks a transfer pending the outcome | Evidence that funds are being moved or a house is being sold |
What the estate has to show, and what the agent has to explain
Where an agent held a confidential fiduciary position and transferred the principal’s property to themselves, New York courts generally do not treat that as an ordinary transaction. The agent is typically required to come forward and explain the transfer — to show that it was authorized, that the principal intended it, and that it was made in the principal’s interest.
That does not mean the estate wins automatically. Agents sometimes have good answers: express gifting authority in the document, a long pattern of gifts the parent made, contemporaneous notes, or expenses that plainly benefited the principal. Outcomes depend on the records and on what the agent can substantiate.
What consistently goes badly for an agent is the absence of records combined with transfers to themselves. Silence is not a defense when recordkeeping was part of the job.
Related claims
The same facts often support more than one theory: conversion of specific property, breach of fiduciary duty, unjust enrichment, and — where a deed or account change was procured through pressure on a declining person — a claim that the transfer itself should be set aside for undue influence or lack of capacity. Where a will was changed during the same period, there may also be grounds to challenge the will, which the firm addresses in its material on probate and estate litigation.
Time limits apply. Claims for breach of fiduciary duty, conversion, and related theories are subject to statutes of limitations, and how they are calculated depends on the theory and on when the conduct occurred or was discovered. Records also disappear — many banks retain statements for a limited number of years. Delay costs cases.
Practical first steps
- Preserve everything: statements, checkbooks, the power of attorney itself, deeds, emails, and text messages
- Pull the property records for any real estate the person owned and look for deeds recorded in the final years
- Do not confront the agent before counsel has reviewed the situation
- Identify who is or will be the estate’s fiduciary, since the claim belongs to the estate
- Note the exact date of death and flag any account activity after it
- Ask whether the person received Medicaid, since transfers may have consequences beyond this dispute
Where a parent is still living and the concern is current, the path is different and more urgent — it may involve a guardianship proceeding or immediate action to stop transfers. The firm’s elder law page covers that side. And where the goal is to prevent this situation in a family’s own planning, the choice of agent and the scope of gifting authority are decisions made at the drafting table, addressed on the estate planning page.
The Law Offices of Christine Thea Rubinstein & Associates P.C. handles these matters in Suffolk and Nassau County Surrogate’s Court and offers a free and confidential initial phone consultation to review the records. Call 1-800-488-6734 or use the contact page.
Frequently asked questions
My brother had the power of attorney and won’t tell us anything. Can we make him?
Often, yes — but usually through the estate rather than personally. Once a fiduciary is appointed, the estate can seek to examine him under oath in a Surrogate’s Court discovery proceeding and to compel an accounting of what he did with the money. A former agent who kept no records is not excused by that fact.
He says Mom wanted him to have it. Does that settle it?
Not by itself. Where an agent transferred the principal’s property to himself, New York courts generally expect him to substantiate that the transfer was authorized and intended. Contemporaneous documents, express gifting authority in the power of attorney, and a consistent prior pattern all help him; an unsupported recollection usually does not.
The house was deeded to my sister two years before Dad died. Is it too late?
Not necessarily. Deeds procured by an agent during the principal’s decline can be challenged on several theories, and Surrogate’s Court can address real property that belongs to the estate. Limitations periods do apply and depend on the theory, so the deed and the surrounding records should be reviewed promptly.
Is this a criminal matter?
It can be. Exploitation of a vulnerable adult may be reported to law enforcement or to Adult Protective Services. A criminal case is separate from the estate’s civil claim, follows a different standard of proof, and is not controlled by the family. Most families pursue the civil recovery, sometimes in parallel.
What if the agent already spent everything?
Recovery depends on what can be traced and on what the person still has. A judgment against someone with no assets has limited practical value, which is one reason to act quickly and to consider restraining relief early if there is evidence funds or property are being moved.