Taking Dad’s Money
Children sometimes steal from their parents. I’m not talking about the petty theft of a minor sneaking into dad’s wallet. The greater concern is with adult children caring for elderly parents. The Maryland Appellate Court has made it clear that the unauthorized taking of funds from a parent’s account is theft.
The Appellate Court of Maryland began the New Year on a moral footing in the field of elder law. The victim in this case, Smith had been estranged from his daughter, Sharon, for about ten years. When he learned he had a grandchild, Smith reached out to his daughter. In short order, Smith added his daughter’s name to his bank account, trusting her to write checks to pay bills in the event of his illness. And Smith told his daughter exactly that.
Two years later, Sharon removed $35,000 from Smith’s bank account which she placed into her own account. She also moved an additional $50,000 and invested the funds in Smith’s name in a certificate of deposit. Smith claimed to have been surprised to learn that $85,000 was missing from his bank account. Sharon claimed that her father was exhibiting erratic behavior. For example, his diet consisted of milk and stovetop stuffing. Smith asked Sharon to purchase a sledgehammer for him to break up his furniture for the purpose of downsizing to an assisted living facility. Concern for a parent’s mental health is just one of many justifications for a child to control their parent’s funds. Children justify the taking with excuses. “But I took care of dad.” “But Mom told me I could.” “I only had dad’s best interests in mind.”
In the Maryland case, Smith demanded the return of his funds and his daughter refused. A jury found that Sharon intended to deprive her father of his funds. And she was convicted of theft.
This case is a cautionary tale for all of us caring for elderly parents. Perhaps Sharon had the best intentions for her father. However, her methods constituted theft. Assuming her concerns about Smith’s mental health were accurate, she should have applied for guardianship rather than removing his funds.
Most estate planners prepare powers of attorney for their clients. A will only addresses what will happen to our property when we die. A power of attorney gives a nominated agent power to act on our behalf while we are alive. In Smith’s case, there was no power of attorney. Had there been a power of attorney granting Sharon powers over her father’s assets, her conviction would have been far less likely.
Extreme caution is required when it comes to the mixture of family and money. Both Smith and Sharon would have benefitted from the advice of a good elder law attorney.
Evan J. Krame
