If you believe an agent under a New York power of attorney has taken the principal's money, the problem is proof. Suspicion does not move a bank or a judge. Records do. This page explains how to force the agent to account, how to get the bank records when the agent will not hand them over, how a forensic reconstruction turns statements into a claim, which court proceeding fits your situation, and what you can recover. It covers agents who are still acting for a living principal and agents whose conduct came to light only after the principal died.
Related pages cover the general law of breach of fiduciary duty by executors, trustees and other fiduciaries, the mechanics of a SCPA 2103 discovery and turnover proceeding, and compelling an estate or trust accounting. Read this page if the fiduciary you are dealing with is an agent under a power of attorney.
Three Situations, Three Different Paths
Where you file, and who can file, depends on the principal's status.
- The principal is alive and competent. The principal can revoke the power of attorney, demand records and bring a special proceeding under General Obligations Law § 5-1510. Certain relatives and others with standing can bring that proceeding as well.
- The principal is alive but lacks capacity. The usual route is a guardianship under Article 81 of the Mental Hygiene Law. The court evaluator, and then the guardian, have statutory authority to obtain the agent's records and recover property.
- The principal has died. The power of attorney terminated at death (GOB § 5-1511). The estate's fiduciary brings a discovery proceeding under SCPA 2103 and a turnover proceeding under SCPA 2104 in Surrogate's Court, or sues the agent in Supreme Court.
What New York Law Requires of an Agent
New York powers of attorney are governed by General Obligations Law Article 5, Title 15 (§ 5-1501 and following). The statute was rewritten by L. 2020, ch. 323, effective June 13, 2021, with technical corrections later in 2021. Powers of attorney signed under the earlier law remain valid, and the duties below applied, in substantially the same form, before the rewrite.
Under GOB § 5-1505(1), the agent must act according to the principal's instructions or, absent instructions, in the principal's best interest; avoid conflicts of interest; keep the principal's property separate from the agent's own; and keep a record of all receipts, disbursements and transactions. Under § 5-1505(3), the agent must make that record available within fifteen days of a written request from a person the statute lists, including a monitor named in the instrument, a court evaluator, a guardian, a government agency investigating abuse, and the personal representative of a deceased principal's estate.
Gifts and self-dealing are governed by GOB § 5-1514. The current statutory short form, if the gifting authority is initialed, permits gifts totaling up to $5,000 per calendar year (§ 5-1502I). Anything beyond that, and any transaction that benefits the agent personally, must be expressly authorized in the Modifications section of the form. That includes gifts to the agent, adding the agent as joint owner with right of survivorship, changing beneficiary designations and transferring real property to the agent. Before June 13, 2021, those powers required a separately executed Statutory Gifts Rider, and the default annual gifting limit was $500. Even where the document grants gifting power, the Court of Appeals held in Matter of Ferrara, 7 N.Y.3d 244 (2006), that the agent may use it only in the principal's best interest. A gift the agent makes to himself is not validated by the mere existence of a gifts clause.
A power of attorney never authorizes the agent to make or change the principal's will, make health care decisions (that requires a health care proxy under Public Health Law Article 29-C), or vote. If you are dealing with a health care agent rather than a financial agent, the remedies are different; see our page on advance directives.
Transactions That Signal Abuse
| What you see | Why it matters |
|---|---|
| A sole account becomes joint with the agent, with right of survivorship | Banking Law § 675 presumes the survivor owns the balance at death. The account passes outside the will unless the presumption is rebutted or the agent lacked authority to create it. |
| Beneficiary changes on life insurance, IRAs or payable-on-death accounts in favor of the agent | A beneficiary change rewrites the estate plan. It requires express authority under § 5-1514. |
| A deed from the principal to the agent, or a home bought with the principal's money in the agent's name | Deeds are public (ACRIS in New York City, the county clerk elsewhere). The transfer tax forms show the consideration paid, which is often zero. |
| Checks to the agent, the agent's spouse or children, or "cash" | Each disbursement must be explained as a benefit to the principal or an authorized gift. |
| ATM withdrawals and debit purchases while the principal is in a nursing home | A bedridden principal does not spend cash at a mall. Location and timing data on the statements speak for themselves. |
| Unpaid nursing home, tax or insurance bills while money leaves the accounts | Shows the agent put his own interests ahead of the principal's. |
| No records, or a refusal to produce them | Record keeping is mandatory under § 5-1505(1). Silence after a written demand is itself evidence. |
How to Prove Power of Attorney Abuse: Step by Step
1. Make a written demand for the record
Start with a dated letter that identifies the power of attorney, states your relationship to the principal, and demands the record of all receipts, disbursements and transactions since the agent began acting. If you are a monitor, co-agent, successor agent, court evaluator, guardian or estate fiduciary, cite GOB § 5-1505(3) and the fifteen-day deadline. If you are a child or sibling without a direct statutory right to the record, the letter still matters: it fixes the date on which the agent was asked and refused, and it reads well to a judge later.
2. Confirm you have standing
GOB § 5-1510(2) lists who may commence a special proceeding concerning a power of attorney. The list includes the principal; the agent; the principal's spouse, child or parent; the principal's successor in interest; a monitor named in the instrument; a third party asked to accept the instrument; a government agency investigating a report of abuse; a court evaluator or guardian ad litem; a guardian; and the personal representative of a deceased principal's estate. A sibling, niece or friend is not on the list and usually proceeds by one of three routes: persuading a person with standing to file, petitioning for Article 81 guardianship, or, after death, obtaining letters from Surrogate's Court and filing as the estate's fiduciary.
3. Get the financial records
Who can get what, and how, differs by account.
- The principal's own accounts: a competent principal, a guardian with letters of guardianship, or an estate fiduciary with letters testamentary or letters of administration can request statements directly from the bank. The fiduciary stands in the principal's shoes. No subpoena is needed. In New York City Surrogate's Courts, uncontested letters often issue within two to four months; see our sample NYC probate timeline. Where the estate needs to move faster, preliminary letters under SCPA 1412 or temporary letters under SCPA 901 give the fiduciary authority to act while the full proceeding is pending.
- The agent's own accounts: no bank will produce them voluntarily. Once a proceeding is commenced, the attorney for a party may issue a subpoena duces tecum under CPLR 2302(a) to the bank, brokerage or insurer. In an SCPA 2103 proceeding the Surrogate's Court authorizes document production and examination under oath. Banks commonly respond within three to six weeks and will certify the records under CPLR 3122-a so they can be used without a live witness.
- Retention limits: federal rules require banks to keep most account records for five years, and many keep seven. Transactions older than that may be unrecoverable. If the abuse began a decade ago, act now rather than waiting for the estate to settle.
- Real property: deeds, mortgages and transfer tax forms are public. In the five boroughs they are on ACRIS; in Nassau, Suffolk, Westchester and upstate counties they are at the county clerk. The closing attorney's file, obtained by subpoena, shows where the proceeds went.
4. Reconstruct the money
A forensic accountant, or an attorney working with one, takes the statements and produces four things: a schedule of every transfer to or for the benefit of the agent; a schedule of cash withdrawals and unexplained debits; a comparison of the principal's spending pattern before and after the agent took control; and a tracing of funds into the agent's accounts or into assets the agent now owns. The output is a set of exhibits a judge can read in ten minutes. The agent then has to explain each line.
5. Assess the case honestly
Strong cases share features: transfers directly to the agent or the agent's family; no express gifting authority in the document, or gifts far beyond it; a principal who was in a facility or visibly declining when the transfers occurred; unpaid bills for the principal's care; and an agent who kept no records. New York courts treat an agent's self-dealing as presumptively improper and place the burden on the agent to justify it.
Weak cases also share features: a principal who was competent and signed the checks or deed personally; a documented history of similar gifts before the power of attorney existed; a gifting clause that covers the transfers, combined with evidence the principal wanted them; transfers consistent with the principal's will; and an agent with contemporaneous records and receipts. A case built only on "my brother got more than I did" rarely succeeds. A case built on bank statements usually does not need to go to trial.
Which Proceeding Fits
| Proceeding | When it applies | What the court can do |
|---|---|---|
| Special proceeding under GOB § 5-1510 (Supreme Court; Surrogate's Court if the principal has died and an estate is pending) | Principal alive, or estate fiduciary pursuing a deceased principal's claims | Compel production of the record; compel an accounting; determine whether the instrument is valid or was procured by fraud or undue influence; remove the agent; construe the document; surcharge the agent for losses. |
| Article 81 guardianship (Mental Hygiene Law §§ 81.01 and following, Supreme Court) | Principal alive and alleged to lack capacity | The court evaluator (§ 81.09) reports on the principal's finances and may request the agent's records under § 5-1505(3). The court may revoke or modify the power of attorney if it finds the agent breached fiduciary duty or the principal lacked capacity when signing (§ 81.29(d)). The guardian may bring a proceeding under § 81.43 to recover property withheld. |
| SCPA 2103 discovery and SCPA 2104 turnover (Surrogate's Court) | Principal deceased; petitioner is the estate fiduciary | Examination of the agent under oath; document production; if the agent claims the property is his, a trial on title; a decree directing turnover to the estate. Where the accused agent is also the executor, the court can issue limited letters under SCPA 702 to another person to pursue the claim. |
| Plenary action (Supreme Court) | Any stage; often used for money damages, constructive trust over real property, or claims against third parties who received the funds | Money judgment, constructive trust, imposition of a lien, cancellation of a deed. |
How Long It Takes and What It Costs
These are typical patterns in the New York City and Long Island courts, not promises for your case.
- Demand letter to records: fifteen days under the statute. In practice, a cooperative agent produces something within a month; an uncooperative one produces nothing, which is the answer you need.
- GOB § 5-1510 petition to an order compelling an accounting: commonly two to four months if the agent does not contest the order. If the agent files an accounting and objections are litigated, a surcharge determination typically takes a year or more.
- Article 81: the hearing on the order to show cause must be scheduled within 28 days of signing (§ 81.07). The evaluator's report comes shortly before the hearing. Recovery of property by the guardian is a separate step afterward.
- SCPA 2103: once letters issue, the examination of the agent can usually be scheduled within two to four months. A contested turnover trial under SCPA 2104, with bank subpoenas and expert testimony, often runs twelve to twenty-four months from filing.
- Fees: our work is billed hourly. A forensic reconstruction of a few accounts over three to five years commonly costs several thousand dollars; a decade-long, multi-institution tracing costs considerably more. Court filing fees in Surrogate's Court depend on the value of the property sought. We discuss likely cost against likely recovery at the first meeting, because a $40,000 claim and a $900,000 claim call for different levels of effort.
Three Patterns We See in New York Power of Attorney Cases
The scenarios below are composites drawn from recurring fact patterns. They are illustrations of how the procedure works, not descriptions of specific clients or results.
The joint account discovered after death
A daughter holds a 2015 power of attorney for her mother in Queens. In 2019, while the mother is in rehabilitation after a fall, the daughter walks into the branch and converts the mother's $300,000 savings account to a joint account with right of survivorship. The mother dies in 2023. The will divides everything equally between the daughter and a son. The son is appointed administrator c.t.a. after the daughter declines to serve, obtains the mother's statements from the bank with his letters, and sees the ownership change. He petitions under SCPA 2103. The questions the court will decide: did the 2015 form include a Statutory Gifts Rider authorizing the daughter to create survivorship rights for herself; did the mother direct the change; and can the daughter rebut the presumption of impropriety that attaches to an agent's self-dealing. Because the mother is dead, CPLR 4519, the Dead Man's Statute, prevents the daughter from testifying at trial about what her mother told her to do.
Self-gifting under a pre-2021 form
A nephew in Brooklyn holds a 2010 power of attorney for his uncle, with no gifts rider. Over four years he writes himself checks totaling $180,000, describing them as reimbursement for caregiving. The uncle is alive but has dementia. A niece petitions for Article 81 guardianship. The court evaluator requests the nephew's record under § 5-1505(3) and reports the transfers. The court appoints the niece as guardian, revokes the power of attorney under § 81.29(d), and the guardian commences a § 81.43 proceeding. The nephew's defense turns on whether caregiving compensation was ever agreed to and documented; the absence of a gifts rider means the $500 annual gifting cap under the pre-2021 law applied, and anything above it required express authority he did not have.
The deed to the agent's child
A friend of an elderly Bronx homeowner holds a 2022 power of attorney with a Modifications section permitting gifts "to family members." The friend deeds the house to his own daughter for no consideration. The homeowner dies six months later. The executor finds the deed on ACRIS, with the transfer tax form showing zero consideration. The friend's daughter is not the principal's family member, so the gift falls outside the stated authority, and under Ferrara a gift that strips the principal of her home shortly before death is hard to square with her best interest. The executor sues in Supreme Court to cancel the deed and impose a constructive trust, and files a notice of pendency against the property so it cannot be sold or mortgaged while the case is pending.
Remedies Once Abuse Is Established
| Remedy | Basis and effect |
|---|---|
| Breach of fiduciary duty | GOB § 5-1505(2) makes the agent liable for conduct that violates the statutory duties. The measure is the loss to the principal or estate, plus interest. See breach of fiduciary duty for the general law. |
| Compelled accounting and surcharge | Under § 5-1510 or in Surrogate's Court, the court directs the agent to account for every transaction and surcharges the agent personally for improper disbursements. Statutory interest in New York runs at 9% per year (CPLR 5004). |
| Constructive trust | An equitable remedy for property acquired through abuse of a confidential relationship (Sharp v. Kosmalski, 40 N.Y.2d 119 (1976)). The court declares the agent holds the asset for the principal or estate and orders it conveyed back. Used most often for real property and for funds traced into identifiable accounts. |
| Conversion and unjust enrichment | Money damages for specific funds taken or for benefits the agent retained without justification. |
| Turnover decree under SCPA 2104 | After death, the Surrogate directs the agent to deliver property to the estate's fiduciary. |
| Cancellation of deeds and beneficiary changes | A transfer the agent lacked authority to make can be set aside. Insurers and plan administrators will generally honor a court order redirecting proceeds. |
| Removal and revocation | The court can remove the agent under § 5-1510. A competent principal can revoke at any time by signed, dated written notice to the agent and to third parties relying on the instrument (§ 5-1511). |
| Tortious interference with inheritance | Not available. New York courts have not adopted a standalone tort of interference with an expected inheritance (see Vogt v. Witmeyer, 87 N.Y.2d 998 (1996)). A disappointed heir instead uses the remedies above, an undue influence claim, or a will contest where the agent also procured a new will. |
Statute of Limitations
The deadline depends on the theory and the relief sought. A breach of fiduciary duty claim seeking money damages is subject to the three-year period in CPLR 214; a claim seeking equitable relief such as a constructive trust or accounting is subject to the six-year period in CPLR 213 (IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132 (2009)). Where the claim is based on fraud, CPLR 213(8) allows six years from the fraud or two years from discovery, whichever is later. Conversion is three years from the taking (CPLR 214(3)).
Two doctrines often extend these periods. First, CPLR 208 tolls the limitations period while the principal lacks capacity, which covers many abused principals. Second, claims for an accounting against a fiduciary generally do not accrue until the fiduciary openly repudiates the relationship or the relationship ends (Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195 (2008)). Because a power of attorney ends at the principal's death, the agent will argue the clock began running then at the latest. Do not rely on tolling arguments if you can file sooner.
Criminal Exposure
Taking a principal's money through a power of attorney can constitute larceny (Penal Law Article 155), forgery (Article 170), identity theft (Penal Law §§ 190.78 to 190.80) and scheme to defraud (§ 190.65). Adult Protective Services, administered in New York City by the Human Resources Administration under Social Services Law § 473, can investigate without the principal's consent and has a statutory right to the agent's records. District Attorneys' offices in the five boroughs and on Long Island have elder abuse units. A criminal referral does not return the money, however. Restitution orders are limited and slow. Most families pursue the civil remedies above because the goal is recovery, and a pending criminal matter can lead the agent to invoke the Fifth Amendment and stall the civil case.
What to Bring to the First Meeting
- The power of attorney, including any Statutory Gifts Rider or Modifications section, and any later revocation.
- The principal's death certificate and will, if the principal has died, and any letters already issued by Surrogate's Court.
- A list of every account, policy and property you know the principal held, with institution names and approximate balances.
- Any statements, cancelled checks or correspondence you already have, even partial.
- Deeds or ACRIS printouts for any real property.
- Medical records or a timeline showing when the principal's capacity declined, including dates of hospital or nursing home admissions.
- Your own notes of what the agent said when asked about the money, with dates.
- Names and contact details of the principal's doctors, home aides and the bank branch staff who dealt with the agent.
If You Are the Agent Being Accused
An agent who kept records, paid the principal's bills, and made no transfers to himself has little to fear from an accounting. We also represent agents. The job is to assemble the record the statute required, match each disbursement to a benefit for the principal, document any gifts the principal directed, and present it before a court orders it. Caregiving compensation is defensible when it was agreed in advance and is reasonable; it is hard to defend when it was taken after the fact and never written down.
Frequently Asked Questions
Can a power of attorney agent be sued after the principal dies?
Yes. The agency ends at death under GOB § 5-1511, but liability for what the agent did while acting survives. The estate's fiduciary brings the claim, most often by SCPA 2103 discovery and SCPA 2104 turnover in Surrogate's Court or by a plenary action in Supreme Court. If no fiduciary has been appointed, a distributee or beneficiary first petitions for letters of administration or letters testamentary.
How do I force a power of attorney to show bank statements in New York?
If you are a monitor, co-agent, successor agent, guardian, court evaluator or estate fiduciary, send a written request citing GOB § 5-1505(3); the agent has fifteen days. If the agent ignores it, or if you are not on that list, petition under GOB § 5-1510 for an order compelling production of the record and an accounting. Once the proceeding is filed, subpoenas to the banks follow.
Does a bank have to give me records if I was named monitor?
Not directly. The monitor's rights under GOB § 5-1509 run against the agent, not the bank: the monitor can request and compel the agent to produce the record of transactions and can bring a § 5-1510 proceeding. The bank will produce records to the monitor only under subpoena or court order issued in that proceeding.
What is the statute of limitations for power of attorney abuse in New York?
Three years for money damages (CPLR 214) and six years for equitable relief such as a constructive trust or accounting (CPLR 213), with six years or two from discovery where fraud is pleaded (CPLR 213(8)). The period is tolled while the principal lacks capacity (CPLR 208), and accounting claims against a fiduciary generally run from repudiation or the end of the relationship.
Can the agent legally add himself to the principal's bank account?
Only if the power of attorney expressly authorizes the agent to create survivorship rights in his own favor, and only if doing so is in the principal's best interest. Absent that authority, the joint account is treated as the principal's property, and after death the estate can recover it despite the survivorship presumption in Banking Law § 675. See also our page on bank accounts at death in New York.
What if the principal refuses to do anything about it?
A competent principal has the right to tolerate the agent's conduct, and no one can sue on her behalf against her wishes. If the principal lacks capacity, an Article 81 petition is the route, and the court evaluator will investigate regardless of whether the principal objects. Adult Protective Services can also be contacted. If the principal has since died, her earlier reluctance does not bar the estate's claim.
The agent says the transfers were gifts the principal wanted. Who has to prove it?
The agent. Because an agent owes fiduciary duties and the transfers benefited him, New York courts require the agent to show the gift was authorized by the instrument, directed by or in the best interest of the principal, and free of undue influence. After the principal's death, the Dead Man's Statute (CPLR 4519) bars the agent from testifying at trial about conversations with the principal to prove his own claim.
Reducing the Risk Before It Happens
A principal signing a power of attorney now can name a monitor under GOB § 5-1509, limit or omit gifting authority, require the agent to provide periodic statements to a named person, name co-agents who must act together for transactions over a set amount, and keep the original instrument with the drafting attorney rather than the agent. These provisions go in the Modifications section of the statutory form.
Speak With Us
Albert Goodwin is a New York estate attorney whose practice includes Surrogate's Court litigation, Article 81 guardianships and fiduciary disputes in the New York City and Long Island courts. If you believe an agent has misused a power of attorney, or you are an agent who needs to account, the Law Offices of Albert Goodwin can help. Call 212-233-1233 or email email@nyestateslawyer.com. Bring the documents listed above if you have them; if you do not, bring what you have and we will work out how to get the rest. More about the firm is on our attorney profile.
