ATTORNEY NEWSLETTER
Powers Of Attorney Are Powerful Legal Instruments
Potential For Abuse Always Exists
Examples Of Power Of Attorney Misuse
Powers of Attorney (POAs) are important and powerful legal documents that grant the agent appointed under the POA full legal authority to act for the principal who executes the POA. The person appointed under the POA is referred to as the Principal’s Attorney-in-Fact. An Attorney-in-Fact’s authority extends to almost every form of financial transaction unless the POA specifically limits his or her 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. Misuse of a senior’s Power of Attorney may be a violation of both the Probate Code and Elder Abuse Act. See Probate Code § 4231.5 and Cal. Welf. & Inst. Code § 15610.30. 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. Additionally, you can hire a licensed, bonded and insured fiduciary to act as Attorney-in-Fact– look at PFAC.org or the PFAC (Professional Fiduciary Association of California) in your County for recommendations. 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).
Examples Of Financial Elder Abuse By Power Of Attorney
Two recently reported cases illustrates the dangers of POA misuse.[1] In the first example, a pastor allegedly stole up to $50,000 from a 91-year-old church member. According to police, the pastor took the elderly church member who reportedly has dementia to a credit union to apply for a loan to buy a pontoon. The loan officer denied the loan request even after she was shown a power of attorney document for the elderly member that the pastor presented during the loan application process. According to police, the loan officer became suspicious when she noticed the pastor’s folder contained other power of attorney documents for other members of the same church. The Branch Manager notified the police who investigated. According to police, the defendant repeatedly used the couple’s money to make personal payments on his own behalf, including for a car loan. In all, the pastor allegedly embezzled up to $50,000, which also included cashing in on a $3,000 life insurance policy on the victim and a $10,000 life insurance policy on the deceased wife.
In the second example, an individual was given a POA to manage the affairs of two residents of an assisted living facility, who were unable to pay their own bills. Although the Attorney-in-Fact was responsible for paying their bills, prosecutors allege that the individual instead pocketed nearly $300,000 of the victims’ funds, spending on herself and ignoring the needs of the two principals The investigation was initiated when the victims became at risk of being evicted from their assisted living apartments, according to the DOJ.
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.
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>.
[1] Evans Law Firm, Inc. was not involved in the two reported cases in any way.
