ATTORNEY NEWSLETTER
Misuse Of Durable Power Of Attorney
Case Example
Remedies Under California Law
A power of attorney (POA) is a written document that gives an agent the legal authority to act for the principal who establishes the power of attorney. In California, POAs can cover financial matters and also medical matters where the POA is called an advance healthcare directives for. The California Probate Code provides standard forms for both kinds of POAs. See Cal. Prob. Code §§ 4401 (financial POA) and 4600 et seq. (advance healthcare directive for medical and health care decisions). Powers of attorney usually are not subject to oversight by a court or third party. If the principal becomes incapacitated and can no longer monitor the agent’s actions, this lack of oversight for a broadly written legal document makes it very easy for an agent to abuse the authority granted by the principal. Even for trustworthy agents, the authority of a POA can be a real burden. Because of that burden and the risk of making a decision that is not in the principal’s best interest is always present, 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. When financial POAs have been executed appointing caregivers and others, those persons can use their POA power to change a principal’s entire estate plan and redirect the principal’s assets to themselves, as described in the case example below. If an agent has misused a POA to your or an older loved one’s detriment in Orange County or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Case Example[1]
In a recently reported case, an ailing 85-year-old woman made a POA naming her primary caregiver as agent. According to the authorities, two weeks later the caregiver used the POA to sell the woman’s home. The agent placed the sale proceeds into bank accounts that were in the elderly woman’s name. Within a year the caregiver allegedly used her authority under the POA to withdraw all the money from the victim’s accounts. Authorities say she used the money to support her lavish lifestyle and her failing business. When the victim discovered her money was gone, she contacted the local law enforcement agency and was told by a detective that her only option was the civil justice system. The adult protective services agency told Helen that they could not help her recover her money. She died dis weeks later before she could bring an action against the caregiver
Remedies For Misuse Of POAs
Sadly, the victim in the reported case was never able to recover the money stolen before she died. For victims who are still alive and for their families after their death, misuse of a POA is grounds for civil liability of the agent for 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. Both the Probate Code and the Elder Abuse Act grant the injured senior (or their heirs if the victim is deceased) 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, San Francisco 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.
