Photo Courtesy of Atkins & Markoff
By Forum Staff
A trusting 83-year-old woman was raked over the financial coals for more than $100,000 after she assigned a “friend” a power of attorney because of her failing eyesight and deteriorating health.
Herman Smith has been charged with one count each of second-degree larceny, second-degree attempted larceny, first-degree scheme to defraud and endangering the welfare of an incompetent person. The 68-year-old Jamaica, Queens resident was released under supervision and ordered to return to court on June 27. Smith faces up to fifteen years in prison if convicted.
“This case is a clear example of why people have to be very careful as to whom they give power of attorney over their financial affairs. In this case, the defendant is accused of betraying the trust of a friend to unscrupulously steal more than $100,000 from her and with attempting to steal additional monies by liquidating an investment account she maintained to open a guaranteed lifetime annuity account, listing himself on the application as the sole beneficiary and the purported spouse of the victim,” said District Attorney Brown.
Charges in the case say that the victim executed a power of attorney back in September of 2014 authorizing Smith to act as her agent. It did not however, grant Smith permission or authority to transfer and/or withdraw monies for any purpose other than to assist her with her financial responsibilities.
Smith paid bills on behalf of the victim and represented her at a real estate closing for a property she owned on North Columbus Avenue in Freeport, Long Island.
In 2015, after the victim had relocated to North Carolina, she authorized Smith to represent her at the sale of a second property she owned. After authorities reviewed bank accounts belonging to the victim, they established that checks made payable to the victim were deposited by Smith, using different accounts, and that over a period beginning in 2015 and extending through 2016, he embezzeled over $100,000 from his elderly friend.
Chase bank records went on to reveal a second account holder on Smith’s account. Yvette Kelly, was a 64-year-old female who had also added Smith as her power of attorney. When she died in 2014, Smith kept her account open. He transferred more than $80,000 from his Chase account to Ms. Kelly’s account between Feb. 2014 and June 2015 and removed in through ATM withdrawl’s from Atlantic City.
Smith also had a Discover credit card in his victim’s name since 1991. The company sent a statement due to the inactivity of the account with information on available credit as well as a promotional offer for $15,000 which Smith took full advantage of through a cash advance check for nearly $11,000 and cash advances at machines in Atlantic City of over $6,000.
He then submitted an application to New York Life Insurance Company on behalf of the victim for a Guaranteed Lifetime Annuity with the sole beneficiary listed as Smith, whose name appeared on the application as the spouse of the victim.
To deposit funds to pay for the annuity however, Smith had to move money from an account at David Learner and Associates. They refused to release the money through a power of attorney and insisted on speaking with the victim directly. When an investigator from David Learner interviewed the victim it was determined that she was completely satisfied with the learner account, did not want to transfer the money and further had not authorized a transaction in question from May of 2015 when the funds from the Discover promotion.
If convicted, Smith faces 15 years in prison.