ATTORNEY NEWSLETTER
Broad Authority Under Powers Of Appointment
Conflicts Of Interest
Remedies For POA Abuse
Powers of attorney are extremely important estate planning tools for all of us as we age; it is helpful to have such arrangements in place before the need for them arises and we are unable to execute the instruments. Financial powers of attorney (POAs) grant full authority over a person’s financial affairs, and medical powers of attorney, known in California as an Advance Health Care Directives (AHCDs), grant authority over medical decisions and health care issues. The forms for both financial and medical POAs are found in California statutes. See Cal. Prob. Code §§ 4401 (statutory form for financial POA) and 4701 (statutory form for AHCD). The person granting the authority is referred to as the “principal” and the persons to whom the powers are granted are referred to as “agent(s)” or “attorney(s)-in-fact.” Misuse of financial POAs is a recurrent form of financial elder abuse; we see cases everyday where an agent under a senior’s financial POA uses their power to steal, to create trusts, to transfer property, and open new accounts all with the intent of taking a senior’s property during their life or at death. Any such misuse constitutes the crime of financial elder abuse (Penal Code § 368) and is grounds for civil liability (Cal. Welf. & Inst. Code § 15610.30) for extra damages and an award of attorneys’ fees and expenses for having to bring a case against a dishonest agent. Cal. Welf. & Inst. Code § 15657.5. If an agent has misused a POA to your or an older loved one’s detriment in Alameda County call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Examples Of Financial Power Of Attorney Abuse
Power of Attorney abuse is the misuse by the agent of the authority granted by the principal. It means making a decision or taking an action that is not in the principal’s best interest. Here’s a hypothetical case: Principal was 85 and ailing when she made a DPA naming an individual as her Attorney-in-Fact. Subsequently, the Attorney-in-Fact used this DPA to sell the Principal’s home. The Attorney-in-Fact placed the sale proceeds into bank accounts that were in the Principal’s name. The Attorney-in-Fact then used her authority under the DPA to withdraw all the money from the Principal’s accounts, using the money to support a lavish lifestyle.
In this illustration, the abuse is the use of the principal’s money for the attorney-in-fact/agent’s own, personal benefit. POA Abuse may also include forging the principal’s signature on the POA, using undue influence to obtain the POA, obtaining the POA when the principal has just had a stroke or suffers from cognitive impairment, or coercing an older person to appoint a POA against his or her wishes.
Remedies For Injured Seniors
Misuse of a POA is grounds for civil liability of twice any amounts taken and attorneys’ fees for the victim. Probate Code § 4231.5. Any relative of an elderly principal has standing under the law to challenge the conduct of an attorney-in-fact for the elder and to force them to account for their transactions. Probate Code §§ 4540(d) and 4541. Where the principal is over age 65 or a dependent person (as the principal in the reported case), the misuse also constitutes criminal and civil financial elder or dependent adult abuse under California law. Penal Code § 368; Cal. Welf. & Inst. Code § 15610.30. Damages are also doubled under the Probate Code for any financial abuse of a senior. Probate Code § 859. Anyone assisting the Agent in taking a senior’s property is also guilty of financial elder abuse under the law. Agents who wrongfully take the property of seniors (and their assistants in the taking) 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.
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. 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>.
