My sister has been cashing our Father's pension check after he's passed. Any advice?

Honest mistake? In that case your sister was "honestly mistaken" about some pretty darned obvious things.

1. Her being a signatory on your father's account does not entitle her to help herself to his cash. The money she emptied out of it does not belong to her. Not to beat about the bush, that's theft.

2. The pension company will most certainly want the overpayment repaid, and they will doggedly pursue the money until they get it. Get it, that is, from your sister - not from you. If you can show that neither you nor your mother at any time took receipt of these payments you should be in the clear. If I were you I would get the information together, call the pension company, and give them whatever information they need to contact your sister. Her problem.

In our case, my mother's pension provider continued to pay into her account in spite of being told of her death and in spite of repeated requests to them to stop it. We still had to give it back, which was fine - what wasn't fine was that I got a letter from them demanding immediate repayment of the total, when it had never been anything to do with me. A simple phone call - I say simple, it took half an hour and a lot of tedious security questions - sorted it out. Hope it does for you too.

I need to revise my earlier first post; been thinking about this situation and thought of something else.

Annie, how old is your sister, and does she have any emotional or mental issues? I recalled that an element of a criminal case can be whether the individual had the mens rea, or wherewithal/knowledge, etc., to know that he/she was committing a crime. I'm wondering if your sister even knew if signing her father's name was illegal?

You wrote that your mother is in late staged dementia; you became aware of this situation about a month ago when you were named as proxy in your mother's DPOA. Was your mother even cognizant at that time to execute a legal document? If she had been diagnosed as such, if that was documented, and if she didn't have the legal capacity to execute legal documents, I'm not sure your DPOA is really effective.

Was your sister named under a previous DPOA? If so, she would likely have had authority to sign the checks and it wouldn't have been forgery. Is it also possible your mother gave her verbal permission to sign, not realizing it wasn't legal? And your mother doesn't remember now?

In addition, you stated in your original post that your father died 12 months ago, then 14 months ago. I'm wondering if there are any other facts that need to be clarified, such as the possibility that your sister was proxy under a former DPOA created by both your parents, or just your father, and that she in fact was acting with legal authority when she signed the checks.

Just as importantly, what does your sister have to say about the situation? Did she admit to cashing the checks w/o proper legal authorization?

I honestly doubt if the pension fund wants to press criminal charges and the hassle that comes with. They would probably be happy to look the other way - providing they get their money back.

Annie, Angel raises an important issue. Was your sister, as I understood from your original post, actually forging your father's name, and was his the sole name on the check?

Going out on a limb here...signing someone elses name on a check is fraud, even if the pension was supposed to continue after death. This is a crime. Even if the mother was entitled to a larger pension herself after his death, the check with the greater amount would come in her name as a survivor benefit, not his as a pension. Usually the funeral home handles alerting the pension holder (often the government) but if there is no funeral home involved, the estate should have done this. She will be ordered to repay or serve time. It's a clear case of fraud. Ignorance of the law is not a free pass.

Angel

RainMom does raise an important point. If your sister didn't have access to any pension documentation, or understand the terms, she might not have been aware that it didn't continue after your father's death.

I recall this was the situation with my sister's state pension fund. I had to do some research and read the voluminous, difficult to read documents as well as get information from the state to figure out which pension option she had chosen.

It could actually have been that kind of situation, which I hope it was, for sister's sake.

When you write your letter, be careful to draw any conclusions; just state the facts, but I would also ask for copies of ALL executed documents relating to your father's pension.

Thank you so much for your help in this matter. I will be writing a certified letter to the fund, as well as sending a copy to my sister. We will then see if the &%^# hits the fan.

It could be treated as an honest mistake - some widows do continue to receive a spouses pension - but it would probably depend on your sisters willingness to face up to the situation. As others have stated she will probably be charged with a crime if she doesn't.

Thank you for your help in this matter. I was appointed POA along with another sister over two years ago. The POA was not used until my mother went into a nursing home. This is when I found out about the pension and my other sister notified the pension fund. My mother was executor of my Dad's estate. I was under the impression that the pension would continue only by contacting the fund did I find out that once my father died the pension ended with his death. This is when I found out that my sister was cashing the checks.

Follow GeeWhiz's instructions to notify the company managing the pension; send the notification by certified mail, return receipt requested, and make sure the post office provides that receipt. They goof up periodically and you have to follow up with them.

Advise them as well that you only recently were appointed proxy under the DPOA and prior to that time had no knowledge of the theft (assuming that's true).

If you did have knowledge before you gained access to the records, you could be considered an accessory, possibly after the fact.

I'm curious - how did the pension holder find out - did you notify them?

The company managing the pension will get records from the bank with copies of the endorsement to confirm that it was your sister's signature, then contact her demanding repayment.

If she can't, or refuses, they may sue, depending on whether she has assets or is judgment proof (they could attach her assets and/or place a lien on real property she owns), but they probably also will notify local police for prosecution.

Proving fraud was committed relies an element of "intent", i.e., the person must have known he or she was committing fraud and intended to do so. Given that she presumably would have known your father had died, that element is in existence.

What the penalties would be I don't know; it may depend on the amount of total theft whether it's a misdemeanor or felony.

In the US the company could either demand repayment or have your sister arrested for fraud. I would consider myself lucky if they allowed me to repay, instead of put me in jail.

From what you describe, you are not responsible - your sister is. If you are in receipt of correspondence from the insurance company, write a clear letter stating that you are the newly appointed POA (how did that happen if your Mom has late stage dementia?) . The insurance company WILL pursue this and I am guessing, your sister will have to pay it all back. If your Mom has no real resources and is on Medicaid, it seems that your sister can deal with the insurance company.

Who was the executor of your Dad's estate? That is the person who should have reported his death to the insurance company.