ATTORNEY NEWSLETTER
Using Power Of Attorney To Commit Fraud
Using POA After Principal’s Death
Remedies When POA Agents Commit Fraud
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). Both forms expire on the principal’s death. While use of an AHCD or medical POA after death is rare, we have seen agents try and use those powers to deny access to medical records of a decedent. Misuse of a financial power of attorney after death of the principal occurs more frequently (as the case discussed below illustrates) and a dishonest agent may rush to us a POA one last time to clean out a bank account, for example, before the bank knows the principal is dead. Whenever it occurs, misuse of financial POAs is against the law. See Probate Code § 4231.5(misuse of power of attorney); Penal Code § 368(crime of financial elder abuse); Cal. Welf. & Inst. Code § 15610.30(definition of financial elder abuse). If an agent has misused a POA to your or an older loved one’s detriment in San Francisco or elsewhere in the Bay Area or in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Recent Indictment For Fraudulent Use Of Power of Attorney[1]
In a recently reported case, the agent under a financial power of attorney has been indicted in connection with an $82,000 scheme to take money following the death of the principal under the POA. Defendant is accused of taking $82,000 in insurance benefits that had been designated to a care facility by the principal and pocketing the funds after the principal’s death. Two years before her death, the principal had designated the government as the sole beneficiary of the annuity in order to qualify to obtain public assistance to live in a nursing home, prosecutors said.
Just hours after the principal died, police say the POA agent, acting pursuant to the power of attorney, contacted the insurance company and requested the annuity be liquidated, supposedly to place it with a different company, prosecutors said. The agent did so without disclosing the principal’s death, prosecutors said. When the money was transferred to the principal’s account, the agent then transferred the money to her own account, as supposed power of attorney, prosecutors said. The agent then allegedly depleted the money through personal expenses and cash withdrawals, according to prosecutors.
Civil Remedies 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. 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 San Francisco 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 case in any way.
