ATTORNEY NEWSLETTER
Civil Penalties And Criminal Charges For Misuse
Examples Of Power Of Attorney Misuse
Enhanced Remedies For Seniors
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. There are statutory forms for both instruments. See Cal. Prob. Code §§ 4401 (statutory form for financial POA) and 4701 (statutory form for AHCD). The potential for abuse of a financial POA is always present, and can include 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 financial POAs may violate both State and federal law. State crimes include crime of financial elder abuse (Penal Code § 368) which is also grounds for civil liability (Cal. Welf. & Inst. Code § 15610.30). Federal crimes include mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C.§ 1343), bank fraud (18 U.S.C. 1344) and making false statements to a financial institution (18 U.S.C. § 1014). If an agent has misused a POA to your or an older loved one’s detriment in Los Angeles or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Examples of Power of Attorney Abuse
An agent acting under a power of attorney has a responsibility and duty to act in the best interests of the principal. If they breach their duties, agents may be found liable in court to the principal for damages and other legal remedies. Examples of power of attorney abuse may include:
- The agent treats the principal’s bank account like their own or commingles funds
- The agent makes questionable financial decisions or fails to act in the principal’s best interests
- The agent purchases a life insurance policy and names themselves as the beneficiary
- The agent changes existing life insurance beneficiaries
- The agent makes changes to the will
- The agent transfers power of attorney to someone else
- The agent purchases real estate “for” the principal and includes themselves on the title
- The agent makes unauthorized gifts to themselves (or to other individuals or charities)
- The agent steals the principal’s property
- The agent uses the principal’s credit cards without permission
- The agent steal’s the principal’s identity or establishes credit under the principal’s name
Civil Remedies 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. 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 Los Angeles 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>.
