ATTORNEY NEWSLETTER
Now Deceased Victim Lived In Care Facility
Money Spent On Vacations And Personal Expenses Of Agent
Care Facility Bills Unpaid At Victim’s Death
The potential for abuse of a Power of Attorney (POA) is always present because the Attorney-in-Fact’s authority extends to almost every form of financial and real property transaction for the Principal’s assets and bank accounts. See Cal. Prob. Code §§ 4401 (statutory form for financial POA). The Attorney-in-Fact steps into the shoes of the Principal under the law and can do with the Principal’s money whatever the Principal could do unless the POA expressly limits the agent’s authority in some way. 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. 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 Orange County or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Allegations Of Misuse Of Senior’s Power Of Attorney
In a recently reported case,[1] an elderly man appointed defendant as his Attorney-in-Fact for financial matters when the man had to move into an assisted care facility. According to court records, at the time the man moved into the facility he had sufficient life savings to cover his care costs for the duration of his life. Instead, his Attorney-in-Fact allegedly withdrew cash from the victim’s accounts for her own use which she spent on holidays and laser treatment over a three-year period according to a sentencing memorandum filed in Court following her guilty plea. By the time the 77-year-old man died, the care facility was reportedly owed tens of thousands of dollars. The Attorney-in-Fact pleaded guilty to theft of the man’s money and was sentenced to a suspended prison term of 20 months and ordered to do community service. At her sentencing, the judge had this to say:
“There is a public interest in maintaining the integrity of a Power of Attorney, because when people lose the ability to control their own affairs, it is important that others close to them have the ability to manage their affairs for them. It is important the Power of Attorney system is not abused and certainly not abused in the way that you abused it. Theft of these monies constitutes a high degree breach of trust”.
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 Orange 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>.
[1] Evans Law Firm, Inc. was not involved in the reported case in any way.
