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My Brother or Sister Is Taking My Living Parent's Money: How to Stop It in New York
This page is for adult children in New York who believe a brother or sister is moving money out of a mother's or father's accounts while that parent is still alive. The goal here is to stop the transfers now and put a check on whoever controls the money. If your parent has already died, or the money is gone and you are trying to trace and recover it, see our separate page on recovering money a sibling has hidden after the fact.
Two facts decide which tools are available to you:
- Capacity: Can your parent still understand and manage their own finances?
- Authority: How is your sibling getting at the money? Through a power of attorney, a joint account, or neither?
Most families go straight to guardianship. In many cases the faster and less intrusive option is a special proceeding against the agent under General Obligations Law § 5-1510, which does not require anyone to prove your parent is incapacitated.
Written and reviewed by attorney Albert Goodwin, who represents families in power of attorney disputes, Article 81 guardianship proceedings and estate litigation in New York City, Long Island and Westchester. This page is general information, not legal advice for your situation.
Decision Guide: Which Remedy Fits Your Facts
| Your situation | Usual first step |
|---|---|
| Parent has capacity, sibling is agent under a POA | Parent revokes the POA (GOL § 5-1511) and signs a new one with a different agent and a monitor. If the agent refuses to produce records, a § 5-1510 petition. |
| Parent has capacity, sibling is a joint owner on accounts | Parent removes the sibling or moves funds to an account in the parent's sole name, and decides whether to demand repayment. |
| Parent has capacity, no POA or joint account (unauthorized taking) | Bank fraud report, police report, and a civil claim brought by the parent. |
| Parent's capacity is uncertain or declining, sibling is POA agent | GOL § 5-1510 petition to compel an accounting and remove or suspend the agent. Article 81 only if more protection is needed. |
| Parent lacks capacity and money is actively leaving | Article 81 petition with a request for a temporary guardian under MHL § 81.23. |
| Parent lacks capacity, no POA, no one authorized to act | Article 81 guardianship of the property. |
Immediate Steps
- Collect what you can lawfully access: statements, check images, transfer confirmations, deeds, beneficiary forms and texts or emails about money. Write down dates, amounts and account numbers. Do not log into your parent's accounts without permission.
- Find the documents that give your sibling access: a copy of any power of attorney, and whether accounts are titled jointly, with a payable-on-death designation, or as convenience accounts. The remedy depends on this.
- Report to the bank: Call the fraud or elder financial exploitation unit at each bank. New York Banking Law § 4-q permits, but does not require, banks to delay or refuse a transaction when they reasonably suspect financial exploitation of a vulnerable adult. A bank may act on your report or may decline to. Ask that the report be noted on the account.
- Report to Adult Protective Services: In New York City, APS operates through the Human Resources Administration and can be reached through 311. Outside the city, contact the county Department of Social Services. An APS investigation creates a record, and APS is one of the parties allowed to bring a § 5-1510 proceeding.
- Hold off on confronting your sibling: A warning often speeds up the transfers. Talk to counsel first.
The GOL § 5-1510 Special Proceeding: Holding a POA Agent Accountable
When your sibling is acting under a power of attorney, New York law gives you a direct way to bring the agent before a judge. General Obligations Law § 5-1510 authorizes a special proceeding focused on the agent's conduct. You do not have to prove your parent is incapacitated, and no guardian is appointed.
Who can bring it
The statute lists who may petition. The list includes the principal (your parent), a spouse, a parent or a child of the principal, the agent or a co-agent, a monitor named in the POA, a guardian, a government agency with authority to protect the principal's welfare such as APS, and any other person who shows an interest in the principal's welfare. An adult child has standing without first becoming a guardian.
What the court can do
Relief available under § 5-1510 includes orders to:
- compel the agent to produce records and account for every transaction made under the POA
- determine whether the POA is valid, including whether your parent had capacity when signing it and whether it was obtained through fraud, duress or undue influence
- decide whether the agent breached fiduciary duties
- remove or suspend the agent
- approve or reject specific transactions, and grant other relief the court finds appropriate
An agent owes your parent the duties set out in GOL § 5-1505: act in the principal's best interest, avoid conflicts, keep the principal's money separate from the agent's own, and keep records. An agent may make gifts, including gifts to themselves, only if the POA expressly authorizes them (GOL § 5-1514), and the gifts must still serve the principal's interest. Unexplained transfers to the agent's own accounts are often where these cases begin.
Why it is often the better first move
- Narrower: The case is about the agent's conduct, not your parent's mental condition. A parent who is frail but still competent is not put through a capacity hearing.
- Less expensive: There is no court evaluator or court-appointed counsel for your parent, which are two of the main cost drivers in Article 81.
- Usable with mild decline: When capacity is borderline, the court can look at the agent's records without anyone being declared incapacitated.
A § 5-1510 petition will not appoint someone new to manage the money. If your parent cannot sign a new POA and needs someone to take over, Article 81 may still be needed. Some families file the § 5-1510 petition first, and the accounting it produces becomes the evidence that supports a later guardianship.
POA monitors under GOL § 5-1509
A New York statutory short form POA lets the principal name a monitor. The monitor can request the agent's records, and the agent must produce them within 15 days. If the agent does not comply, the monitor can bring a § 5-1510 proceeding. If your parent is signing a new POA, naming a monitor who is not the agent is one of the simplest protections available. Check whether the existing POA already names one. You may find that you or another sibling already has this right.
If Your Parent Has Capacity
A competent adult may manage their own money, including in ways their children disagree with. A court will not appoint a guardian for someone who has capacity, and it is not a proper use of Article 81. Your role is to help your parent take back control.
- Revoke the POA: Under GOL § 5-1511 a principal can revoke at any time. The revocation should be in writing and delivered to the agent and to every bank and brokerage that has the old POA on file. A bank that has not received notice may keep honoring it.
- Sign a new POA: Any new POA must meet the requirements of the 2021 reforms, effective June 13, 2021, including two witnesses and a notary. Name a monitor.
- Restructure the accounts: Remove the sibling as joint owner or authorized user, move funds to an account in your parent's name alone, and send transaction alerts to your parent's phone or email.
- Review the estate plan: If your sibling pushed changes to a will, trust or beneficiary designation, your parent can revise them with a lawyer your sibling did not choose.
While your parent is alive and competent, any claim to recover money belongs to your parent, not to you. Your parent may decide not to pursue a child. That is their decision, and you cannot sue in their place.
If Your Parent Lacks Capacity: Article 81 Guardianship
When your parent can no longer manage their finances and the agent problem cannot be solved by a § 5-1510 petition alone, Mental Hygiene Law Article 81 allows the Supreme Court to appoint a guardian of the property. The court must find that your parent is likely to suffer harm because they cannot provide for their property management and do not understand that inability. It must also choose the least restrictive form of help. An existing POA that is working properly can be a reason to deny guardianship. An abused POA is often a reason to grant it.
The process includes a petition, a court evaluator who investigates and reports (MHL § 81.09), the right to counsel for your parent (MHL § 81.10), and a hearing. The statute sets the hearing within 28 days of the court signing the order to show cause. For the full process, see our New York guardianship attorneys page.
Emergency relief: temporary guardian under MHL § 81.23
If money is leaving the accounts now, MHL § 81.23 lets the court appoint a temporary guardian when the filing is made. That guardian can be authorized to freeze accounts, stop pending transfers and demand records. A guardian of the property can also be given the power to revoke the existing POA and pursue recovery on your parent's behalf.
Costs and Timelines Compared
| GOL § 5-1510 petition | Article 81 guardianship | |
|---|---|---|
| Must prove incapacity? | No | Yes, by clear and convincing evidence |
| Court evaluator and counsel for parent | Generally not | Usually yes, with fees often paid from the parent's assets |
| Typical starting point | Order to show cause and petition in Supreme Court | Order to show cause and petition in Supreme Court |
| Speed | Can move quickly if the agent defaults or produces records | Hearing set by statute within 28 days, with temporary relief available sooner |
| Ongoing supervision | Ends when the court rules | Annual reports and court oversight for as long as the guardianship lasts |
| Who pays the petitioner's lawyer | Usually the petitioner, unless the court orders otherwise | The court may award reasonable fees from the parent's estate (MHL § 81.16(f)) |
Filing fees in Supreme Court include the $210 index number and the $95 request for judicial intervention. Legal fees vary widely. The main drivers are whether the sibling contests, how many accounts need to be reconstructed, and in Article 81 cases, the court evaluator's work and the length of the hearing. We can give you a realistic estimate after reviewing your documents.
When Your Sibling Is a Joint Account Owner
Joint accounts are where many families get stuck. Under Banking Law § 675, an account opened in two names "payable to either or the survivor" is presumed to create a joint tenancy. During your parent's lifetime, New York courts have generally held that a joint tenant who withdraws more than their share without the other owner's consent can be required to return the excess. The presumption can be rebutted by showing the account was opened only for convenience, for example so your sibling could pay bills, or that it was set up through fraud or undue influence.
Facts that help rebut the presumption include your parent depositing all the money, your sibling being added when your parent became ill, bank paperwork describing the account as a convenience account (Banking Law § 678), and a pattern of withdrawals that served only your sibling. Get the account-opening documents from the bank early. They often settle the question.
Evidence Courts Find Persuasive
- Bank records showing money moving from your parent to accounts in your sibling's name, or to your sibling's own expenses
- The POA itself, especially whether it authorizes gifts and in what amounts
- Timing: transfers that begin or speed up after a diagnosis, hospitalization or move to a facility
- Medical records and physician statements about capacity around the dates of key transactions
- An agent's failure to produce records after a written request from a monitor or APS
- Unpaid bills, care cut back, or Medicaid problems despite your parent having money
Family suspicion, a sibling's new car or vague statements about "lending" money carry little weight without records to support them.
Criminal Reporting
Taking a parent's money without authority can be prosecuted as larceny under Penal Law Article 155, which includes embezzlement and obtaining property by false pretenses. The degree depends on the amount. For example, grand larceny in the fourth degree (§ 155.30) applies above $1,000, and the third degree (§ 155.35) above $3,000. The vulnerable-elderly offenses in Penal Law §§ 260.32 and 260.34 deal mainly with caregivers who cause physical injury. Financial exploitation is usually charged as larceny.
To report, go to your local police precinct or the district attorney's office. Many DA offices in New York City and on Long Island have units focused on elder abuse or elder fraud. Expect prosecutors to look closely at whether a POA or joint account gave your sibling apparent authority, because those cases are harder to charge. A criminal case does not freeze accounts or appoint anyone to manage your parent's money. Treat it as a parallel track, not a substitute for the civil remedies above.
Illustrative Scenarios
These are hypothetical examples meant to show how the rules apply. They are not results from actual cases.
- Competent parent, stale POA: A father in Queens signed a POA naming his daughter years ago. She has been paying her own credit card from his account. He is still sharp. The remedy is revocation, delivery of notice to his banks, a new POA naming a son as agent and the daughter's spouse-free friend as monitor, and a decision by the father about whether to demand repayment.
- Declining parent, uncooperative agent: A mother in Nassau County has early dementia. Her son, as agent, will not show anyone her statements. Another child files a § 5-1510 petition to compel an accounting. If the accounting shows self-dealing, the court can remove the agent, and the records support an Article 81 petition if one is needed.
- Incapacitated parent, active transfers: A parent in a Manhattan nursing home can no longer recognize family, and large withdrawals are continuing. An Article 81 petition with a request for a temporary guardian under § 81.23 is the fastest way to stop the outflow.
Related Pages
- Abuse of a power of attorney
- Breach of fiduciary duty claims in New York
- Accounting proceedings
- Article 81 guardianship
If your parent has died and the estate's fiduciary needs to recover money from a sibling, that is handled in Surrogate's Court through a discovery and turnover proceeding, which is outside the scope of this page.
Common Questions
Can I demand my parent's bank records from my sibling?
Not on your own unless you are named as monitor in the POA, are a co-agent, or have been appointed guardian. You can bring a § 5-1510 proceeding and ask the court to compel an accounting.
My parent says the transfers were gifts. Does that end it?
If your parent has capacity and confirms the gifts freely, usually yes. If capacity is in question, or your sibling made the gifts as agent, the court will look at whether the POA authorized gifts and whether they served your parent's interest.
How long is there to act?
Civil claims have deadlines. Conversion is generally three years from the taking (CPLR 214), and fraud claims are generally six years (CPLR 213). The practical deadline is shorter, because money that has been spent is hard to recover. Act while there is still money to protect.
Talk to a New York Attorney About Your Parent's Accounts
Attorney Albert Goodwin handles § 5-1510 petitions, POA disputes and Article 81 guardianships in New York City, Long Island and Westchester. Bring whatever statements and documents you have, and we can tell you which route fits your parent's situation. Call 212-233-1233 or email email@nyestateslawyer.com. You can also reach us through our office contact page.
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or email@nyestateslawyer.com.
