ATTORNEY NEWSLETTER
What Are Powers of Attorney?
A Power of Attorney (POA) is a very important legal document where the principal authorizes an agent to act on the principal’s behalf. The authority of the agent ends either when the principal revokes their authority, or on the death of the principal. California has a statutory form of Power of Attorney. California Probate Code § 4401. The statutory form allows the principal to give broad powers to the agent over all sorts of matters (business transactions, taxes, legal and court documents, real estate matters, insurance and annuities matters etc.) or restrict the agent to certain designated matters. The Power may take effect immediately or be a “springing” Power that takes effect only when the principal is incapacitated; often the Power of Attorney is referred to as a “Durable Power of Attorney” meaning that it remains in effect until revoked or the principal’s death.
California also has a statutory form for a Power of Attorney for health care decisions. California Probate Code § 4771. Whatever type of Power of Attorney you need, a qualified attorney should assist you in preparing a Power of Attorney since whatever type it is, a Power of Attorney carries significant legal consequences. The Alameda County and California financial elder abuse attorneys at Evans Law Firm Inc. represent clients whose agents have misused Powers of Attorney and can assist you in preparation of a Power or represent you if an agent has abused the Power. Call us today at (415)441-8669 if you need legal counsel.
Misuse of Powers of Attorney
Family members, caregivers, and trusted advisors or relatives are often appointed as agents. Unfortunately, the majority of Power of Attorney abuse claims reviewed by Bay Area elder abuse attorneys are against family members, caregivers and trusted advisors or loved ones. (The very ones so often trusted.) Financial elder abuse can easily occur when anyone is granted such power. A vulnerable or isolated senior is easy prey for a financial predator acting under a Power of Attorney. Abuse ranges from imprudent or unsuitable decisions all the way to comingling of money, conversion or outright theft.
Remedies
If a Power of Attorney has been abused remedies include restitution of money lost, other damages, and criminal charges if warranted. If the principal is a senior citizen, California elder abuse laws also provide for extra damages and mandatory attorneys’ fees and costs against the abuser. The following individuals may be able to pursue these remedies:
- the principal (the person granting authority under the power of attorney);
- a guardian, conservator, personal representative of the estate of a decreased principal, or other fiduciary acting for the principal;
- a person authorized to make health care decisions for the principal;
- the principal’s spouse, parent, descendant, and adult brother, sister, niece or nephew;
- a person named as a beneficiary to receive any property on the principal’s death (including as a beneficiary of a trust created by or for the principal);
- and other persons (such as close friends) who demonstrate sufficient interest in the principal’s welfare.
Preventing Abuse
To prevent the chances of Power of Attorney elder abuse, seniors should always make sure that they never grant such authority to strangers, and be highly cautious with caregivers, financial advisors, or even family members that suddenly develop a high-level of interest in their financials, or other personal information. Ask a professional to prepare the Power and have them tailor the power exactly to the authority you wish to grant and under what circumstances the power should spring into effect.
Contact Us
If you believe that you or a loved one has suffered Power of Attorney abuse or elder abuse in Alameda County or elsewhere in California contact Ingrid Evans and the other attorneys at the Evans Law Firm at 415-441-8669 or or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our attorneys have experience with complex financial contracts, such as annuities and life insurance, and large insurance companies and cases involving Powers of Attorney, trusts, wills, and other legal instruments. We can help guide your case through a FINRA Arbitration, jury trial or toward an equitable settlement. We handle cases involving physical and financial elder abuse, qui tam and whistleblower law, nursing home abuse, whole life insurance and universal life insurance, and indexed, variable, and fixed annuities.
