ATTORNEY NEWSLETTER
Financial POAs Are Dangerous Tools For The Dishonest
Case Example of Largescale Abuse of POA
Remedies For Injured Principals
Financial powers of attorney (POAs) appoint designated persons to transact financial affairs on behalf of a “Principal.” The person appointed under the POA is called the Principal’s Attorney-in-Fact and 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). (Medical POAs known as Advance Health Care Directives are also governed by the law. Cal. Prob. Code § 4701 et seq.) Persons can use powers of attorney to withdraw money from bank accounts, close existing bank accounts and open new ones, access all of s senior’s financial account information, sell and buy real estate and apply for equity lines or reverse mortgages on a senior’s home. 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 Marin, throughout the San Francisco Bay Area or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Example Of Theft By Power Of Attorney
In a recently reported case,[1] an elderly person’s attorney-in-fact was sentenced to a year in prison for stealing funds from the elderly principal by use of the power of attorney the elderly woman had granted to the defendant. The defendant plead guilty to stealing funds from her elderly principal and her estate over a six-year period. A Police Financial Crimes Units found that the attorney-in-fact had prepared and presented false trust documents to open bank accounts which she allegedly then used to transfer funds to herself without the elderly principal’s knowledge. Authorities also say the woman submitted false documents to an insurance company to change address and beneficiary information on life insurance policies owned by the principal. Police said she further concealed the theft by filing inaccurate documents in court after the victim’s death. The Court sentenced the attorney-in-fact to a year in prison and ordered restitution of over $860,000 to the deceased principal’s estate.
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 Marin or elsewhere in the San Francisco Bay Area, 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.
