What to Do When a Power of Attorney Is Suspected of Stealing from an Older Adult in New Jersey
- Alexander J. Kemeny
- 5 days ago
- 16 min read
New Jersey legal options for families concerned about power-of-attorney abuse, missing records, financial exploitation, and protecting an older adult’s assets
If you suspect that someone with power of attorney is stealing from an older adult in New Jersey, the first step is to move from suspicion to evidence.
That usually means identifying the power-of-attorney document, preserving bank and brokerage records, documenting the older adult’s capacity and vulnerability, and determining whether an accounting, Adult Protective Services report, guardianship, temporary guardianship, or court application may be appropriate.
A power of attorney gives an agent authority to act for another person. It does not give the agent ownership of the older adult’s money. Under New Jersey law, an attorney-in-fact is a fiduciary who must act within the authority granted, act for the principal’s benefit, and maintain accurate records.
These cases can move quickly. Money can be withdrawn, transferred, spent, commingled, or moved through accounts before other family members understand what happened. But not every disputed transaction is theft. The legal analysis depends on the power-of-attorney document, the older adult’s capacity, the agent’s records, the timing of the transfers, and whether the money was used for the older adult’s benefit.
Key Takeaways
A New Jersey power of attorney creates delegated authority, not ownership.
An attorney-in-fact must act within the authority granted and for the principal’s benefit.
Suspicious conduct may include unexplained withdrawals, transfers to the agent, unpaid bills, missing records, new joint accounts, changed beneficiaries, or isolation of the older adult.
Capacity matters. If the older adult has capacity, revocation or direct action by the principal may be possible. If the older adult lacks capacity, guardianship or court relief may need to be evaluated.
Adult Protective Services, law enforcement, financial institutions, and civil litigation counsel may each have different roles.
Brokerage and investment-account activity may raise additional issues under New Jersey’s SAFE Act.
The strongest cases are usually built on records, capacity evidence, transaction history, and a clear legal theory.
Why Suspected Power-of-Attorney Theft Matters
A power of attorney is often created to protect an older adult. It may allow a trusted person to pay bills, manage bank accounts, deal with investment accounts, handle taxes, sell or maintain property, and communicate with financial institutions. The problem is that the same authority can be misused.
A family may discover that a sibling is withdrawing cash from a parent’s account. A caregiver may be added to a bank account. Bills may go unpaid even though the agent controls the money. A brokerage account may be liquidated. A deed, beneficiary designation, or payable-on-death arrangement may change after the older adult’s cognitive decline.
Sometimes the agent says, “I have power of attorney, so it is none of your business.”
That answer only raises further concern and is often not accurate.
A New Jersey attorney-in-fact has fiduciary duties. The agent may have authority to act, but that authority must be used properly. The practical question is usually not just whether money moved. The better questions are:
What does the power-of-attorney document actually authorize?
Did the older adult have capacity when the document was signed?
Did the older adult have capacity when the disputed transactions occurred?
Were the transfers for the older adult’s benefit?
Were gifts or payments to the agent authorized?
Did the agent keep accurate records?
Are assets still being transferred, spent, or liquidated?
Does the older adult need protective services, guardianship, or court intervention?
New Jersey Law: A Power of Attorney Creates Authority, Not Ownership
Under New Jersey law, a power of attorney is a written instrument by which one person, called the principal, authorizes another person, called the attorney-in-fact or agent, to perform specified acts on the principal’s behalf.
In plain English, the agent may be allowed to act for the older adult. But the agent does not become the owner of the older adult’s assets simply because the document exists.
The power-of-attorney document matters. It may address banking, real estate, retirement accounts, taxes, business interests, gifting, compensation, beneficiary changes, or other financial authority. A lawyer evaluating suspected misuse will usually begin by reading the actual document, not by assuming that all powers of attorney are the same.
Broad authority is not the same thing as permission to self-deal. For example, using a parent’s account to pay the parent’s mortgage, assisted-living bill, taxes, insurance, or medical expenses may be consistent with the agent’s authority. Using the same account to pay the agent’s credit cards, move money into the agent’s personal account, or make undocumented “gifts” may require much closer review.
An Attorney-in-Fact Has Fiduciary Duties
New Jersey law provides that an attorney-in-fact has a fiduciary duty to the principal and, if the principal has been adjudicated incapacitated, to the guardian of the principal’s property.
The agent must act within the powers delegated by the power of attorney and solely for the benefit of the principal. The agent must also maintain accurate books and records of financial transactions. That rule has an important litigation consequence: suspected power-of-attorney abuse is usually a records case.
A family may feel certain that money was stolen. But a court typically want to see records showing what happened. Questions that are central to how a court will decide to intervene often include:
What accounts existed before the disputed conduct?
What money came in?
What money went out?
Who received the funds?
What was the claimed purpose of each transfer?
Were checks, wires, withdrawals, or payment apps used?
Were the funds used for the principal’s expenses?
Were funds transferred to the agent, the agent’s spouse, the agent’s business, or favored relatives?
Were records kept at the time, or created later after questions were raised?
Can the Agent Be Forced to Account?
In New Jersey, an attorney-in-fact may be required to account in certain circumstances.
Depending on the facts, the principal, a guardian, a conservator, or the personal representative of the principal’s estate may be able to require an accounting. The Superior Court may also require an accounting on application by an heir or other next friend if the principal is incapacitated and there is doubt or concern about whether the attorney-in-fact is acting within delegated powers or solely for the principal’s benefit.
That does not mean every relative automatically has a right to inspect every bank record. Standing, capacity, the principal’s wishes, the legal role of the person requesting records, and the need for court intervention all matter. But when an agent refuses to provide records while money is missing, bills are unpaid, or assets are being transferred, an accounting may become a central remedy.
Capacity Changes the Strategy
Capacity is often a hinge issue. If the older adult has capacity, the older adult may be able to revoke the power of attorney, sign a new document, demand records, change account access, notify financial institutions, or retain counsel.
If the older adult lacks capacity, family members may not have authority to act simply because they are relatives. In that situation, a guardianship, temporary guardianship, accounting application, or other court proceeding may need to be evaluated.
New Jersey adult guardianship cases are handled through the Superior Court, with filings involving the county Surrogate. A guardian may be appointed for the person, the estate, or both, depending on the circumstances. A guardianship may be general or limited.
A valid power of attorney may reduce the need for guardianship in some cases. But guardianship may still be necessary if the power of attorney is being misused, is too limited, is disputed, is refused by financial institutions, or no longer protects the older adult.
Temporary Guardianship and Emergency Court Relief
Some suspected exploitation cases require urgent evaluation. If assets are actively being dissipated, a brokerage account is being liquidated, real estate is being transferred, or the older adult cannot protect themselves, a family may need to consider whether temporary guardianship or other court relief is available.
New Jersey law permits a guardianship complaint to request appointment of a temporary guardian pendente lite in appropriate circumstances. The court may consider temporary relief where there is good cause and a critical need or risk of substantial harm, including risk that property or business affairs may be wasted, misappropriated, dissipated, lost, damaged, diminished, or not properly managed.
This does not mean every suspicious withdrawal justifies emergency relief. Courts generally require evidence, procedure, and a legally appropriate remedy. But if money is still moving, delay may make recovery harder.
Adult Protective Services May Be Relevant
New Jersey Adult Protective Services investigates suspected abuse, neglect, or exploitation of vulnerable adults living in the community. APS may be appropriate when an older adult is being financially exploited, neglected, isolated, threatened, or deprived of necessary care. Certain professionals are mandatory reporters; other people may report suspected abuse, neglect, or exploitation.
APS can investigate and help coordinate protective services. But APS is not the same as private civil litigation. APS does not automatically freeze accounts, remove an attorney-in-fact, appoint a guardian, compel an accounting, or recover money. Those remedies may require court involvement. For immediate physical danger, threats, emergency medical needs, or active criminal conduct, 911 or law enforcement may be appropriate.
Brokerage and Investment Accounts May Raise SAFE Act Issues
Power-of-attorney abuse is not limited to checking accounts. Some of the most serious cases involve brokerage accounts, investment accounts, retirement funds, annuities, or liquidation of securities. These matters may involve large, traceable assets and time-sensitive transfer requests.
New Jersey’s Safeguarding Against Financial Exploitation Act, commonly called the SAFE Act, addresses suspected financial exploitation involving certain eligible adults and financial professionals. Broker-dealers and investment advisers may have reporting obligations when they believe financial exploitation has occurred, has been attempted, or is being attempted. In certain circumstances, they may also delay transactions or disbursements.
This can matter when an agent under a power of attorney attempts to liquidate investments, transfer funds, change account access, or move money away from the older adult.
If the suspicious conduct involves a brokerage or investment adviser, counsel may need to evaluate not only the power-of-attorney document and fiduciary duties, but also account records, compliance communications, SAFE Act reporting, and whether any transaction delay or preservation strategy is available.
New Jersey Courts Scrutinize Fiduciary Self-Dealing and Missing Records
In power-of-attorney litigation, records often determine whether a transaction can be explained. New Jersey case law recognizes the fiduciary nature of the attorney-in-fact relationship and the importance of showing that disputed expenditures were for the principal’s benefit. In cases involving missing records, self-dealing, or a deceased principal who can no longer explain or contradict the transactions, the agent’s documentation may become especially important. The practical lesson is straightforward: an agent who handles another person’s money should be able to explain the money trail.
What Families Should Do First
The right sequence depends on urgency, capacity, and whether money is still being moved. But in many New Jersey cases, the following steps matter.
1. Confirm Whether the Older Adult Is Safe
If the older adult is in immediate danger, needs emergency medical help, is being threatened, or is being deprived of food, housing, medication, or care, the first concern is safety. Financial exploitation may overlap with neglect, isolation, coercion, or abuse. Protective services, law enforcement, medical intervention, or emergency court action may need to be considered depending on the facts.
2. Locate the Complete Power-of-Attorney Document
Do not rely on someone’s summary of the document. Find the actual signed power of attorney, including all pages, signatures, acknowledgments, amendments, and any revocation.
Important questions include:
Who is the agent?
Is there a co-agent?
Is there a successor agent?
Is the power of attorney durable?
What financial powers are granted?
Does the document authorize gifts?
Does it authorize compensation?
Does it allow transfers to the agent?
Does it require accountings?
Has the document been revoked?
Have banks or financial institutions accepted or rejected it?
3. Preserve Financial Records Before They Disappear
Financial exploitation cases often depend on what can be shown through records, tracing assets, and detailed timelines.
Important records may include:
Bank statements
Brokerage statements
Retirement account statements
Canceled checks and check images
Wire records
ATM withdrawal records
Credit-card statements
Venmo, Zelle, PayPal, or other payment-app activity
Deeds
Mortgages and home-equity records
Beneficiary designations
Payable-on-death forms
Tax returns
Caregiver invoices
Assisted-living or nursing-home bills
Medical bills
Emails, texts, letters, and voicemails
Communications with banks, brokers, APS, or law enforcement
Court or Surrogate records
The goal is not to collect random paperwork. The goal is to reconstruct the money trail.
4. Build a Transaction Timeline
A useful timeline may show:
When the power of attorney was signed
When cognitive decline began
When the agent began acting
When unusual withdrawals started
When bills stopped being paid
When accounts were retitled
When beneficiaries changed
When the older adult entered a hospital, rehabilitation facility, assisted living, or nursing home
When records were requested
How the agent responded
Whether transfers are continuing
This timeline can help distinguish a family suspicion from a legally actionable pattern.
5. Evaluate Capacity
Capacity should not just be assumed. Medical records, dementia diagnoses, physician notes, neuropsychological evaluations, medication history, hospital records, facility assessments, and witness observations may all matter.
Capacity also may need to be evaluated at more than one point in time. A person may have had capacity when signing the power of attorney but lacked capacity when later “authorizing” gifts. Or the reverse may be true.
6. Decide Whether to Request Records or Seek an Accounting
A records demand may be appropriate in some cases. In others, an informal demand may alert the suspected agent before assets are secured or records are preserved.
The strategy depends on urgency, capacity, standing, the size of the disputed transactions, the availability of records from third parties, and whether court relief may be needed.
Common Situations Where This Issue Arises
“My sibling has power of attorney and will not show anyone bank records.”
Refusal to share records does not automatically prove theft. But it can be a serious warning sign when combined with unexplained withdrawals, unpaid bills, isolation of the older adult, or transfers that benefit the agent.
The first legal question a court might ask if you seek court assistance, is whether the person requesting records has standing to demand them. The answer may depend on whether the older adult has capacity, whether a guardian or estate representative exists, and whether court involvement is appropriate.
“Mom has dementia, and the agent is moving money into their own account.”
This may typically calls for prompt legal evaluation. The key issues include when cognitive decline affected capacity, whether the transfers were authorized, whether the funds were used for the parent’s benefit, whether gifts were permitted, and whether a guardian of the estate or temporary court relief may be needed to stop further loss.
“The agent says the money was a gift.”
Gifts by an attorney-in-fact are often fact-sensitive. The power-of-attorney document may or may not authorize gifting. Even if gifting authority exists, the transaction may still be questioned if it involved undue influence, impaired capacity, self-dealing, lack of documentation, or a transfer inconsistent with the older adult’s needs.
“The agent says they were just paying themselves back.”
Reimbursement and compensation are different from gifts. An agent may have legitimate expenses or a potential claim for compensation in some circumstances. But the agent should be able to explain the legal basis, amount, timing, and records supporting the payments. Large, undocumented, or one-sided payments to the agent often require closer review.
“A brokerage account is being liquidated or transferred.”
This is reason for serious concern. Brokerage and investment accounts may involve substantial assets, rapid transfers, and additional reporting issues. If a broker-dealer or investment adviser is involved, New Jersey’s SAFE Act may be relevant. Counsel may need to evaluate account records, transaction requests, compliance communications, and possible court remedies.
“The older adult is still competent and supports the agent.”
Competent adults can make financial decisions that family members dislike. A poor spending choice, a generous gift, or favoritism toward one child is not automatically exploitation. However, dementia and congnitive difficulties that older adults experience are typically progressive - meaning they get worse overtime - and legal capacity is on a sliding. As a result, there are many instances where an adult may appear to be competent to family members, friends, or acquitances, but they are in fact no longer have sufficient capacity to make certain decisions. In those instances, these individuals are more prone to finanical manipulation and exploitation and are not able to properly manage their assets.The analysis of such situations shoud consider evidence of incapacity, undue influence, coercion, fraud, deception, isolation, or misuse of fiduciary authority.
“The older adult has died, and we are now discovering suspicious transfers.”
After death, the personal representative of the estate may need to investigate transactions that occurred during life. These disputes may connect power-of-attorney law, estate litigation, probate accountings, undue influence, beneficiary changes, and claims to recover assets.
Evidence That May Matter
The Complete Power-of-Attorney Document: The document defines the agent’s authority. It may address banking, real estate, gifting, compensation, tax matters, retirement accounts, and beneficiary issues.
Bank and Brokerage Records: Statements show withdrawals, deposits, transfers, payees, balances, and timing. Brokerage records may show liquidation of investments, transfers, margin activity, or changed account access.
Check Images and Withdrawal Records: Check images may show who wrote the check, who endorsed it, and whether the memo line supports the agent’s explanation. ATM records may show location, timing, and frequency of cash withdrawals.
Bills, Care Expenses, and Receipts: An agent may have a legitimate explanation for spending. Rent, taxes, utilities, insurance, medical bills, home care, assisted living, nursing-home charges, and home repairs may all be proper if documented.
Medical and Capacity Evidence: Dementia diagnoses, physician notes, hospital records, neuropsychological evaluations, medication records, and facility assessments may help show whether the older adult understood the relevant transaction.
Communications: Texts, emails, letters, voicemails, and notes may show pressure, consent, concealment, isolation, explanations, or admissions.
Beneficiary, Deed, and Estate-Planning Changes: A power-of-attorney dispute may overlap with estate litigation if the agent changed beneficiaries, retitled accounts, transferred real estate, influenced a will or trust, or changed payable-on-death arrangements.
APS, Police, Bank, and Brokerage Records: Reports and institutional records may help establish the timeline, identify suspected exploitation, and show whether banks, brokers, or agencies raised concerns.
Common Mistakes to Avoid
Waiting While Money Continues to Move
Delay can make recovery harder. Funds may be withdrawn, transferred again, spent, commingled, or moved beyond easy tracing.
Assuming Power of Attorney Automatically Means Theft
A power of attorney gives authority. The question is whether the agent used that authority properly. Some transactions may be authorized, reimbursable, or consistent with the principal’s wishes.
Making Public Accusations Before Preserving Evidence
Public accusations can escalate family conflict, create legal risk, and alert the suspected agent before records are secured.
Taking Money Back Without Legal Authority
Family members should not engage in self-help by taking funds, changing locks, intercepting mail, accessing accounts, or moving property without legal authority. That can create new legal problems.
Relying Only on Adult Protective Services When Court Relief Is Needed
APS may investigate suspected exploitation. But APS does not automatically compel an accounting, freeze assets, appoint a guardian, remove an attorney-in-fact, or recover money.
Ignoring the Older Adult’s Capacity and Wishes
An older adult’s choices matter - even in cases where they lack sufficient capacity to manage their affairs. Litigation strategy should account for peron's level autonomy, desires, intent, capacity, possible undue influence, and evidence that is admissible in court.
Failing to Identify All Accounts and Property
Power-of-attorney misuse may involve checking accounts, investment accounts, retirement funds, real estate, life insurance, personal property, business interests, or digital payment platforms. A narrow review may miss major assets.
When This Becomes a Lawyer Problem
A suspected power-of-attorney abuse issue should be evaluated by New Jersey litigation counsel when:
The agent refuses to provide records.
Significant funds are missing.
Transfers are continuing.
The older adult has dementia, cognitive decline, or disputed capacity.
The agent is transferring assets to themselves or favored relatives.
Bills, taxes, insurance, rent, mortgage, or care expenses are unpaid.
Bank accounts, brokerage accounts, retirement funds, or real estate are being sold or transferred.
The power of attorney includes broad gifting language that needs legal interpretation.
APS, law enforcement, a bank, or a brokerage firm is involved.
A guardianship or temporary guardianship may be needed.
Court restraints or asset-preservation relief may need to be evaluated.
The older adult has died and the estate representative needs to investigate prior transfers.
Litigation may be needed to compel an accounting or recover assets.
The goal is not to accuse first and investigate later. The goal is to protect the older adult, preserve evidence, understand the legal authority, and select the remedy that fits the facts.
What to Look for in New Jersey Litigation Counsel
A serious power-of-attorney exploitation matter may require more than a form letter. Useful counsel should be able to evaluate:
The power-of-attorney document
The older adult’s capacity and medical history
Bank, brokerage, and property records
The agent’s fiduciary duties
Whether an accounting can be demanded or compelled
Whether APS or law-enforcement involvement affects the civil strategy
Whether guardianship or temporary guardianship may be appropriate
Whether court restraints or asset-preservation remedies may be available
Whether funds can be traced
Whether third parties or recipients of funds are involved
Whether the dispute may become estate, trust, probate, or fiduciary litigation
Whether expert review, forensic accounting, motion practice, trial preparation, or appellate issue preservation may be needed
More information about the what to expect in an adult guardianship proceeding in New Jersey can be found in Kemeny, Ramp & Renaud's New Jersey Adult Guardianship: A Complete Legal Guide.
How Kemeny, Ramp & Renaud, LLC Can Help Evaluate the Issue
Kemeny, Ramp & Renaud, LLC represents clients in New Jersey litigation involving guardianships, estate and trust disputes, fiduciary litigation, serious civil disputes, trial strategy, and appeals.
In a suspected power-of-attorney abuse matter, KRR can evaluate the power-of-attorney document, financial records, capacity evidence, fiduciary duties, transaction history, deadlines, and available court procedures. Depending on the facts, that evaluation may include whether to seek records, demand or compel an accounting, pursue guardianship or temporary guardianship, coordinate with APS or financial professionals, or pursue civil claims to protect or recover assets.
Concerns about financial exploitation of an older or incapacitated adult should be addressed through evidence, records, and careful legal analysis. The next step is to evaluate the facts, deadlines, evidence, and available legal options.
Frequently Asked Questions
Is it stealing if someone with power of attorney takes money from an older adult?
It depends on the facts. A power of attorney does not give the agent ownership of the older adult’s money. The agent must act within the authority granted and for the principal’s benefit. Unauthorized transfers, self-dealing, unexplained gifts, or payments unsupported by records may raise fiduciary-duty and financial-exploitation concerns.
Can I force a power of attorney to provide an accounting in New Jersey?
Possibly, depending on your legal role and the older adult’s capacity. New Jersey law allows certain people, including the principal, a guardian, a conservator, and a personal representative, to require an accounting. The Superior Court may also require an accounting in certain circumstances involving an incapacitated principal and concern about the agent’s conduct.
What if my parent still has capacity and wants the agent to have the money?
Capacity and intent are critical. A competent adult generally has the right to make financial decisions, including gifts, even if family members disagree. The analysis changes if there is evidence of incapacity, undue influence, coercion, fraud, deception, isolation, or misuse of the power of attorney.
Does a power of attorney prevent guardianship?
No, a valid power of attorney may reduce the need for guardianship but a guardianship may still be necessary if the power of attorney is limited, disputed, misused, refused by third parties, or insufficient to protect the person or property.
Should I call Adult Protective Services?
APS may be appropriate when a vulnerable adult living in the community is suspected to be the victim of abuse, neglect, or exploitation. APS can investigate, but its authority is not the same as a court’s authority to compel accountings, appoint guardians, restrain assets, or order financial remedies.
Can a court freeze accounts if a power of attorney is stealing?
Yes. A court may impose restraints or other protective relief in appropriate cases, but the remedy depends on evidence, procedure, urgency, jurisdiction, and the specific accounts involved. Temporary guardianship may also be considered where property is at risk of being wasted, misappropriated, dissipated, or not properly managed.
What records should I gather before contacting a lawyer?
Useful records may include the power of attorney, bank and brokerage statements, check images, wire records, transfer records, medical and capacity records, care invoices, communications, beneficiary changes, deeds, APS or police information, and any court or Surrogate records. Do not obtain records unlawfully or access accounts without authority.
Can money taken through power-of-attorney abuse be recovered?
It may be possible, depending on the records, the recipient, the legal claims, available assets, and timing. Potential remedies may include an accounting, return of property, damages, restraints on further transfers, guardianship-related relief, or estate litigation after death. Attorney review is required before selecting any remedy.
Is suspected power-of-attorney theft a criminal or civil issue?
It can be both, but the paths are different. APS and law enforcement may evaluate abuse, neglect, exploitation, or criminal conduct. However, there are often times where they will decline to act. Civil litigation is often the most effective way of protecting the older adult, obtaining records, stopping transfers, appointing appropriate authority, or seeking financial remedies.
Contact Our Firm
If you are concerned that a power of attorney is being used to exploit an older adult in New Jersey, the next step is to evaluate the facts, deadlines, evidence, and available legal options. Kemeny, Ramp & Renaud, LLC can review the power of attorney, financial records, capacity issues, fiduciary duties, and potential court remedies in a careful, evidence-focused way.
