Disclaimer: This is educational information and not legal advice. If you believe a power of attorney was misused or that your relative lacked capacity, consult a licensed Delaware attorney promptly.
Short answer
Yes. In Delaware you can challenge transfers made under a power of attorney (POA) when you have a good-faith belief the principal (for example, your grandfather) lacked capacity when the POA was signed or when the agent made transfers. Challenges can also succeed if the agent breached fiduciary duties, committed fraud, or used undue influence. Remedies can include undoing transfers, imposing a constructive trust, money damages, and (in urgent cases) temporary freezes on accounts.
How Delaware law treats powers of attorney
Delaware law sets the legal framework for powers of attorney and the duties of agents under Title 12 of the Delaware Code. The POA gives a designated agent legal authority to act for the principal. That authority depends on (1) the POA having been validly executed and (2) the principal having had the required mental capacity at the time of execution (unless the document is a durable POA that remains effective after incapacity and was validly made).
For the statutory text governing probate, fiduciary relations, and matters related to powers of attorney, see Delaware Code, Title 12: https://delcode.delaware.gov/title12/.
Grounds to challenge transfers made under a POA
- Lack of capacity at execution: If the principal did not understand the nature and effect of the document when signing, the POA can be declared void or voidable.
- Lack of capacity at time of transfer: If the agent used the POA to transfer assets while the principal lacked the mental capacity required by law to authorize those specific transfers (or if the POA required ongoing consent), you may be able to set aside transfers.
- Undue influence or coercion: If the agent or a third party pressured the principal into signing or into making transfers, courts can invalidate transactions.
- Fraud or misrepresentation: Transfers based on false statements or forged signatures can be reversed and may give rise to civil and criminal claims.
- Breach of fiduciary duty/self-dealing: Even with a valid POA, an agent must act in the principal’s best interest and keep accurate records. Self-dealing or improper transfers can be overturned.
Typical legal claims and remedies
- Declaratory judgment that the POA is invalid.
- Claims for breach of fiduciary duty, conversion, unjust enrichment, or fraud against the agent.
- Imposition of a constructive trust or equitable lien on assets improperly transferred.
- Accountings and return of funds.
- Temporary injunctive relief or asset freezes to protect remaining funds while the dispute proceeds.
What evidence helps prove lack of capacity or misconduct?
Courts consider medical and documentary evidence together with witness testimony. Useful evidence includes:
- Medical records and physician or neuropsychological evaluations showing cognitive decline (e.g., dementia, Alzheimer’s, delirium) around the time the POA was signed or transfers occurred.
- Notes, emails, or contemporaneous statements indicating confusion, disorientation, or incapacity.
- Bank records showing unusual withdrawals, new payees, or transfers inconsistent with the principal’s prior behavior.
- Copies of the POA, drafts, and the circumstances of signing (who was present, whether an independent attorney or notary was used).
- Witness statements from family members, caregivers, or professionals who interacted with the principal at the time.
Practical steps to take right away
- Preserve evidence. Save copies of the POA, bank statements, cancelled checks, and any communications about transfers.
- Request an accounting from the agent in writing. Many jurisdictions expect agents to keep records and provide them on demand.
- Contact the bank or financial institution. Ask whether they will place a temporary hold or provide transaction records. Explain you may challenge transactions.
- Obtain medical records and seek a current medical evaluation showing capacity at the relevant times.
- Talk to an attorney experienced in Delaware fiduciary/elder law right away. Time is important because banks often move quickly and statutes of limitations can bar claims if you delay.
- If there is immediate risk of dissipation, an attorney can file for emergency injunctive relief to freeze assets pending litigation.
How an attorney can help in Delaware
A Delaware lawyer will evaluate the evidence, determine the best legal claims (for example, voiding the POA, breach of fiduciary duty, or conversion), prepare pleadings, and seek remedies such as an accounting, return of assets, or temporary freezing orders. Many contested fiduciary cases in Delaware proceed in equity, and an attorney can advise which court has jurisdiction and how to proceed.
Timing and practical considerations
Act quickly. Even if you have strong reasons to believe the POA was invalid, banks and agents may assert defenses (good-faith reliance, lapse of statute of limitations, or that transfers were authorized). Early preservation of records and prompt legal action increases your chance of success.
Helpful Hints
- Start collecting documents now: POA copies, bank records, medical records, and witness names.
- Do not confront the alleged agent alone if you think they might remove or hide assets. Let your lawyer handle contact.
- Request a full accounting in writing; agents often must keep records and may produce them voluntarily when asked.
- Make a list of unusual transactions (large transfers, new payees, sudden gifts) with dates and amounts.
- Consider an independent medical exam or neuropsychological test showing capacity at the time in question.
- Keep timelines short and concrete—courts favor clear chronologies and contemporaneous evidence.
- Look into elder-abuse or criminal options if fraud or clear exploitation appears; those may run parallel to civil claims.
- Consult a Delaware attorney experienced in fiduciary disputes or elder law to choose the right forum and remedies.
For statutory context and additional resources, review Delaware Code, Title 12 (Decedents’ Estates and Fiduciary Relations): https://delcode.delaware.gov/title12/, and the Delaware Court of Chancery (common forum for fiduciary disputes): https://courts.delaware.gov/chancery/.
Remember: this article explains general principles and practical steps. It is not a substitute for personalized legal advice. Speak with a Delaware-licensed attorney to evaluate your specific facts and to act quickly if you suspect improper transfers.