ATTORNEY NEWSLETTER
Elderly Person Claims Attorney-in-Fact Misused POA
Principal Seeks $891,000 In Damages
Wants Title To Home Restored
Powers of attorney (POAs) are significant legal instruments which grant appointed agents full legal authority to act for the principal who executes the POA. The person appointed under the POA is called the Principal’s Attorney-in-Fact. The Attorney-in-Fact’s authority extends to almost every form of financial transaction unless the POA specifically limits his or powers. See Cal. Prob. Code §§ 4401 (statutory form for financial POA). The potential for abuse of such broad power is always present. Misuse of a POA abuse includes outright theft of the principal’s money or property and, in a broader sense, making any decision or taking any action that is not in the donor’s best interest. Even for the most trustworthy attorney-in-fact, the burden of making decisions for a principal is a heavy one. Therefore, we recommend you appoint two trusted individuals as agents under any POA to act jointly. We also recommend that you never, ever, grant a Power of Attorney to a caregiver. Caregivers and others can wield their POA power to change a principal’s entire estate plan and redirect the principal’s assets to themselves. If an agent has misused a POA to your or an older loved one’s detriment in Alameda County or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Allegations Of Misuse Of Senior’s Power Of Attorney
In a recently reported case,[1] a senior is alleging misuse of a power of attorney by her attorney-in-fact and has sued her for $891,000. The complaint alleges that the couple appointed defendant as attorney-in-fact when the husband of the couple began to suffer from late-stage Alzheimer’s disease and advanced dementia. According to allegations in the complaint, the attorney-in-fact demanded the principal and her now-deceased husband pay one thousand dollars in rent each month for living in her home after she deeded the elderly couple’s former home to herself. She also allegedly isolated them by withholding their cell phone, hearing aid and glasses.
The complaint also claims that the attorney-in-fact also added herself as a joint account holder to several bank accounts owned by the couple. The complaint also alleges that the attorney-in-fact sold the older couple’s cars, bought herself a BMW and spent over $50,000 of the couple’s money to renovate their former home (to produce rental income). According to the lawsuit, the attorney-in-fact also charged more than $30,000 to their debit and credit cards for her own personal expenses. Defendant has denied the allegations and the civil case is pending.
Remedies Against Attorneys-in-Fact For Misuse Of POAs
Misuse of a POA is grounds for civil liability of twice any amounts taken and attorneys’ fees for the victim. Probate Code § 4231.5. Where the principal is over age 65 the misuse also constitutes criminal and civil financial elder abuse under California law. Penal Code § 368; Cal. Welf. & Inst. Code § 15610.30. Agents who wrongfully take the property of seniors are responsible not only for twice the amount taken under the Probate Code but also, under the Elder Abuse Act, enhanced damages. Both the Probate Code and the Elder Abuse Act grant the injured senior attorneys’ fees and expenses incurred in suing to get their property back. Probate Code § 4231.5(c); Cal. Welf. & Inst. Code § 15657.5. In addition to straightforward theft, California law also prohibits an agent from designating beneficiaries or creating future (or survivorship) interests in the principal’s property unless specifically authorized to do so in a POA. Cal. Prob. Code § 4264. The agent is strictly prohibited from making or revoking the principal’s Will. Cal. Prob. Code § 4265.
Contact Us
Ingrid M. Evans can represent you if an agent has misused a Power of Attorney granted by you or an older loved one in Alameda County or elsewhere in California. If you need help, call us today at 415-441-8669 or toll free at 1-888-50EVANS (888-503-8267).or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Ingrid will pursue all remedies available against the agent, including attorneys’ fees and expenses for the older person required to bring an action based on the agent’s wrongful conduct.
[1] Evans Law Firm, Inc. was not involved in the reported case in any way.
