ATTORNEY NEWSLETTER
How Powers Of Attorney Can Be Misused
Examples Of Power Of Attorney Abuse
Recourse For Victims Under California Law
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. See Cal. Prob. Code §§ 4401 (statutory form for financial POA). The potential for abuse of such broad power is always present. Misuse of a POA abuse is making a decision or taking an action that is not in the donor’s best interest. Because the risk of making a decision that is not in the principal’s best interest is always present, 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).
What Are Examples Of Power Of Attorney Abuse?
While Power of Attorney abuse can come in many forms, the kind we are concerned with here is financial abuse through POAs. This typically involves the agent under the POA misusing the principal’s money or assets for the agent’s own benefit. It is not unusual for an agent to use the money or assets to pay themselves for their services or reimburse themselves for expenses, but when those payments are unreasonable, it may be considered financial abuse. When they spend money or sell assets for a reason other than to carry out their duties as an agent, doing so may violate the law. See Cal. Probate Code § 4230 et seq. (Duties of Attorneys-in-Fact).
Specific examples of how agents may use a POA for their own benefit include:
- 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 Breach of Duty And 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 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>. 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.
