ATTORNEY NEWSLETTER
Scope Of Agent Authority Under Powers Of Attorney
Examples Of Power Of Attorney Abuse
Remedies For Misuse Of Power Of Attorney
Powers of Attorney are important legal documents and generally come in two forms. 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. The burden of making decisions for the principal is a heavy one, even for the most trustworthy attorney-in-fact, and we recommend you appoint two trusted individuals as agents under any POA or AHCD to act jointly. We also recommend that you never, ever, grant any form of 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 or Social Security, pension and annuity benefits to themselves. A recent case, discussed below, illustrates the dangers. If an agent has misused a POA to your or an older loved one’s detriment in San Mateo County or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Examples Of Power Of Attorney Abuse
Here are some examples of abuse of powers of attorney:
- The agent treats the principal’s bank account like their own or commingles funds
- The agent makes questionable financial decisions or fails to act in the principal’s best interests
- The agent purchases a life insurance policy and names themselves as the beneficiary
- The agent changes existing life insurance beneficiaries or payable on death beneficiaries on financial accounts
- The agent makes changes to the will
- The agent transfers power of attorney to someone else
- The agent purchases real estate “for” the principal and includes themselves on the title
- The agent makes unauthorized gifts to themselves (or to other individuals or charities)
- The agent steals the principal’s property
- The agent uses the principal’s credit cards without permission
- The agent steal’s the principal’s identity or establishes credit under the principal’s name
Civil Remedies For Misuse Of POAs
Most people notice POA abuse when they see abrupt and inexplicable changes in the agent’s lifestyle. If you are a family member of a principal who is unable to defend their own rights, you can seek remedies against the agent. Probate Code § 4540(d) (relatives of the principal have standing to act against agents). In addition to possible criminal consequences lodged in the reported case, 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. 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>.
