ATTORNEY NEWSLETTER
Spotting Power Of Attorney Abuse
How Agents Use POAs To Enrich Themselves
Stopping And Suing For POA Abuse
A power of attorney is a document authorizing one or more people (“agent(s)” or “attorney(s)-in-fact”)) to act on behalf of another (the “principal”) in financial or medical matters. 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 violates the law, and, when the principal is a senior, may constitute the crime of financial elder abuse (Penal Code § 368) and be grounds for civil liability (Cal. Welf. & Inst. Code § 15610.30) for extra damages and an award of attorneys’ fees and expenses for having to bring a case against a dishonest agent. Cal. Welf. & Inst. Code § 15657.5.. 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).
Spotting Power of Attorney Abuse and Fraud
Here are some things to consider when a power of attorney is being used in a real estate transaction:
- Who is the designated agent/attorney-in-fact? Never, ever allow an older loved one to grant a Power of Attorney to their caregiver.
- Is your agent/attorney-in-fact providing you with copies of all statements and transactions he o she is managing? One of the telltale signs of POA abuse is when the agent “hides” records and information from the principal and the principal’s family.
- Examine the power of attorney document closely. Was it signed under suspicious circumstances (i.e., just after the principal has had a stroke or while the principal is in the hospital, etc.? Has it been executed and witnessed properly?
- Examine the document to ensure it has not been altered in any way.
- Are the decisions being made solely for the benefit of the donor or is the attorney or another individual benefitting? If the donor is not benefitting, could the power of attorney use be construed as a breach of fiduciary duty?
Civil Remedies For Misuse Of POAs
Any relative of an elderly principal has standing under the law to challenge the conduct of an attorney-in-fact for the elder. Probate Code § 4540(d). 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>.
