ATTORNEY NEWSLETTER
Alleged Theft By Attorney-in-Fact Occurred Over Three-Month Period
Victim In Mental Health Facility And Unaware Of Fraud
Allegedly Spent Gambling And On Hotels And A New Car
Misuse of Powers of Attorney (POAs) is always against the law. Probate Code § 4231.5. But when the principal is an elder or dependent adult, the abuse of a power of attorney may also constitute the crime of financial elder abuse and be grounds for civil liability under the Elder Abuse Act. Penal Code § 368 and Cal. Welf. & Inst. Code § 15610.30. Misuse of a POA 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 or elsewhere in the San Francisco Bay Area or throughout California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Allegations Of Misuse Of Dependent Adult’s Power Of Attorney
In a recently reported case,[1] a woman was arrested and charged for allegedly stealing nearly $60,000 in a three-month period from the principal of the Power of Attorney who was a patient in a mental health facility. While the victim was in a mental health facility, the attorney-in-fact allegedly used her POA to buy herself a car, spend money at casinos and hotels, and withdraw large amounts of cash from an ATM near the casinos she frequented. All of the funds came from the accounts of the Principal who was unaware of the transactions and did not consent to the use of his money for these purposes. The charges are still pending against the arrested attorney-in-fact. If convicted, the woman faces a maximum sentence of ten years in prison on the charges.
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 or a dependent adult (such as in the reported case above) the misuse also constitutes criminal and civil financial elder/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 or elsewhere in the San Francisco Bay Area or throughout 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.
