ATTORNEY NEWSLETTER
Changing A Principal’s Estate Plan For Personal Benefit
Closing Longstanding Accounts
Isolation And Removing Trusted Advisors
Powers of Attorney (POAs) grant the agent broad powers over virtually all of a principal’s affairs. POAs can cover financial matters and health matters. The California Probate Code provides standard forms for both types of POAs. See Cal. Prob. Code §§ 4401 (financial POA) and 4600 et seq. (medical powers of attorney and advanced health care directives). 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 San Francisco or elsewhere in California call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Misuse Of Power Of Attorney
In a recently reported case,[1] the son of an elderly decedent is claiming that another person cut him out of his interest in his father’s estate in part by using a Power of Attorney to change beneficiary designations and close bank accounts in which the son had a joint interest with his deceased father. According to court papers, the POA agent allegedly took advantage of the decedent’s “weakened and vulnerable state” by misleading him and inducing him to remove his son as a 50 percent beneficiary on an investment account holding $1.3 million. The inheritance change “was purportedly executed when [the decedent] was in his 90s, was severely impaired (both physically and mentally), strongly medicated, and was being misled, misinformed, and manipulated by [the POA agent] and/or others upon whom he relied,” court papers charge. When the son asked his father about the change, the father insisted he had made no change to the beneficiary designation. When the son confronted the bank about the IRA beneficiary change, the bank froze the account and changed the beneficiary designation back to the previous 50/50 split. According to court papers, the agent also allegedly changed the locks on the decedent’s apartment so his son could not visit him, and closed longstanding bank accounts and fired the decedent’s longtime financial advisor. The civil case is still pending.
Recourse For Disinherited Children
Misuse of a POA, such as that raised in the allegations of the reported case, is grounds for civil liability of twice any amounts taken and attorneys’ fees for the victim. Probate Code § 4231.5. Where the principal is a senior citizen the misuse also constitutes criminal and civil financial elder abuse under California law. Penal Code § 368; Cal. Welf. & Inst. Code § 15610.30. In addition to straightforward theft as in the reported case discussed above, 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. 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.
[1] Evans Law Firm, Inc. was not involved in the case in any way.
