ATTORNEY NEWSLETTER
Misuse Of Elderly Man’s Power Of Attorney
Forensic Accounting Reveals Hundreds Of Thousands Missing
Additional Allegations Of Credit Card Use And Obtaining Loans
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. For that reason, 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).
Recent Charges Of Theft By Power Of Attorney
In a recently reported case,[1] a caregiver who also acted as an elderly man’s power of attorney, has been charged with financial elder abuse, theft by person holding power of attorney, criminal breach of trust, fraudulent use of a credit card, theft over $5,000, identity fraud, and obtaining credit by false pretenses. The charges have not been proven in court. The charges came after a lengthy investigation into hundreds of thousands of dollars allegedly stolen from the elderly victim. Authorities in the case said in a news release said that they started the investigation alongside the Office of the Public Guardian and a forensic accountant several years ago after a family representative reported that hundreds of thousands of dollars belonging to an elderly family member was unaccounted for. The allegations in the case underscore our advice given above: Never, ever allow an older loved one to give a Power of Attorney to a caregiver. A caregiver is paid to provide medical care and assistance and has no business whatsoever getting involved in an older persons financial affairs.
Civil Remedies For Misuse Of POAs
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 Mateo County 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>.
[1] Evans Law Firm, Inc. was not involved in the reported case in any way.
