ATTORNEY NEWSLETTER
Redirected Annuity Payments
$120,000 In Unauthorized Withdrawals
Two-Year Sentence And Restitution
Financial powers of attorney (POAs) grant full authority over a person’s financial affairs and a medical power of attorney, known in California as an Advance Health Care Directive (AHCD) grants authority over all medical decisions and health care issues. The scope of the powers under POAs and AHCDs is set by law. See Cal. Prob. Code §§ 4401 (statutory form for financial POA) and 4701 (statutory form for AHCD). The potential for abuse of such broad power is always present. The misuse of a financial 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. The burden of making decisions for a principal is a heavy one, even for the most trustworthy attorney-in-fact. For that reason, 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 or Social Security, pension and annuity benefits to themselves. If an agent has misused a POA to your or an older loved one’s detriment in Marin County or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Recent Conviction For Theft By Power Of Attorney
In a recently reported case,[1] a California man was convicted on one felony count of forgery after misusing his power of attorney to steal over $120,000 from the principal’s annuity policy. The man was sentenced to two years probation and ordered to pay $120,000 restitution to the beneficiaries of his now deceased victim. Ten years ago, the principal had purchased a $1.2 million annuity policy after he had been diagnosed with early onset dementia, according to authorities. In the following year, the defendant obtained a financial power of attorney for the principal. A California Department of Insurance investigation found that the defendant misappropriated over $120,000 from the principal’s annuity by making six separate withdrawals from the policy without the principal’s knowledge. Defendant allegedly withdrew the funds by impersonating the principal during telephone calls with the insurance company and forging the policy beneficiary’s signature on documents. As a result of the defendant’s fraudulent actions, the principal incurred an additional loss of approximately $92,000 due to penalties and early withdrawal fees from the insurance company, according to the Insurance Department.
Civil Remedies Against Attorneys-in-Fact For Misuse Of POAs
In addition to possible criminal consequences, 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 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. 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 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>. 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.
