ATTORNEY NEWSLETTER
Misuse Of Power Attorney
Examples Of Power Of Attorney Misuse
Recourse For Principals
A power of attorney (POA) is a written document that gives an agent the legal authority to act for the principal who establishes the power of attorney. This designation may be used to open or close bank accounts, write checks, make new investments, sell assets, collect income, and conduct other financial transactions. See Cal. Prob. Code §§ 4401 (statutory form for financial POA). The potential for abuse of such broad power is always present. Because POA agents bear such heavy responsibility, we recommend you appoint two trusted individuals as agents under any POA to act jointly reducing the chances of misuse or mistakes by a single agent. 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. Using a POA by agents to gain personal benefit is a misuse of a POA making the agent liable for twice the amount taken and an award of attorneys’ fees and costs incurred in any action against them for their misuse of the POA. Probate Code § 4231.5. 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).
Examples Of Misuse Of Power Of Attorney
Common examples of the power of attorney abuse include financial abuse of an elderly principal or a greedy agent taking money from the principal’s account through various methods:
- acquiring signing authority on checking and savings accounts;
- closing existing bank accounts that may be joint with the principal’s family members;
- hiring new CPAs or investment advisors to replace longstanding advisors of the principal’s own choosing;
- opening new accounts;
- selling the principal’s house, or transferring the title into their name;
- paying the agent’s own bills with the principal’s money;
- failing to pay the principal’s bills;
- commingling the principal’s money with the agent’s own money; and
- failing to maintain records and account for the agent’s proceedings.
Recourse 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 for enhanced damages and the attorneys’ fees and expenses incurred by the elder in having to sue to get their property back from the POA agent. 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>. 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.
