ATTORNEY NEWSLETTER
Signs Of Power Of Attorney Abuse
Never Give A Caregiver A Power Of Attorney
Remedies For POA Abuse
Among the most important estate planning tools for anyone are powers of attorney. A power of attorney is a document authorizing one or more people (“agent(s)” or “attorney(s)-in-fact”)) to act on behalf of another (the “principal”) in financial or medical matters. 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. Abuse of a POA 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 violates the law, and, when the principal is a senior, may constitute the crime of financial elder abuse (Penal Code § 368) and be grounds for civil liability (Cal. Welf. & Inst. Code § 15610.30) for extra damages and an award of attorneys’ fees and expenses for having to bring a case against a dishonest agent. Cal. Welf. & Inst. Code § 15657.5. 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 in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Signs Of Power of Attorney Abuse and Fraud
Here are some things to consider whenever you need to before and after you grant someone a power of attorney:
- Who is your intended agent/attorney-in-fact? Never, ever allow an older loved one to grant a Power of Attorney to their caregiver. Ever. Caregivers are hired to provide personal and medical care for a senior, not financial assistance. We have seen so many instances where a caregiver was given a POA or even a credit card or ATM card and the results were disastrous. Avoid potential problems by making sure a caregiver just sticks to care giving and nothing else.
- Is your agent/attorney-in-fact providing you with copies of all statements and transactions he or she is managing? One of the telltale signs of POA abuse is when the agent “hides” records and information from the principal and the principal’s family.
- Are the decisions being made solely for the benefit of the donor or is the attorney or another individual benefiting? If the donor is not benefiting, could the power of attorney use be construed as a breach of fiduciary duty?
Civil Remedies For Misuse Of POAs
Any relative of an elderly principal has standing under the law to challenge the conduct of an attorney-in-fact for the elder. Probate Code § 4540(d). 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. 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 Marin 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>.
