ATTORNEY NEWSLETTER
Misappropriation Of Fiduciary Property Alleged
Unauthorized Use Of Credit Cards And Blank Checks
Victim’s Son Reported Suspicions
Powers of attorney (POAs) grant the agents appointed under them full legal authority to act for the principal who executes the POA. The scope of the appointed attorney-in-fact’s powers is set by law and, unless specifically limited by a principal, extends to almost every form of financial transaction. 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 includes 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. Even for the most trustworthy attorney-in-fact, the burden of making decisions for a principal is a heavy one. Therefore, 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 San Francisco 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
In a recently reported case,[1] a pastor was arrested and accused of taking more than $30,000 from an elderly couple by making withdrawals on their accounts and other misappropriation of their property. According to authorities, the defendant was helping take care of an elderly couple at church and had the power of attorney and finances for them. Police began to investigate the man’s relationship and dealings with the couple after their son heard two church members say defendant was misusing his parents’ bank cards and getting them to sign blank checks. According to the affidavit presented for the indictment, the investigation showed multiple debit card transactions and ATM withdrawals from the elderly husband’s bank card. The detective said multiple checks were written from the couple’s account to defendant and his personal and church accounts. According to police, the defendant repeatedly used the couple’s money to make personal payments on his own behalf, including for a car loan.
Remedies Against Attorneys-in-Fact For 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.
[1] Evans Law Firm, Inc. was not involved in the reported case in any way.
