ATTORNEY NEWSLETTER
Powers Of Attorney Grant Broad Authority
Examples Of How That Authority Is Misused
Legal Remedies For POA Misuse
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, and 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 violate both State and federal law. State crimes include crime of financial elder abuse (Penal Code § 368) which is also grounds for civil liability (Cal. Welf. & Inst. Code § 15610.30). Federal crimes include mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C.§ 1343), bank fraud (18 U.S.C. 1344) and making false statements to a financial institution (18 U.S.C. § 1014). 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).
Three Case Studies[1]
Case Study No.1: POA used to defraud disabled elderly widow and nursing home resident of nearly $500,000; sentenced to 70 months in federal prison on one count of wire fraud. Agent obtained POA despite knowing victim clearly lacked capacity to understand actions due to severe cognitive and physical disabilities. Agent then used POA to drain victim’s accounts for own benefit.
Case Study No. 2: POA used to defraud elderly disabled veteran and nursing home resident of over $120,000; sentenced to 27 months in federal prison on one count of wire fraud. Victim signed POA form despite obvious cognitive and physical disabilities. Form stated agent could not make gifts to self but did so. Victim lost life savings and unable to pay for his nursing home care.
Case Study No. 3: Married couple used two POAs to steal over $200,000 from husband’s elderly mother. Spent all of victim’s funds for own benefit, and victim could no longer afford assisted living facility, so had to move in with perpetrators. Over the next three months, the victim lost over 23 pounds, broke her wrist, and was hospitalized. The victim later died.
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 any of the case studies shared by the U.S. Department of Justice’s Elder Justice Initiative.
