ATTORNEY NEWSLETTER
Theft From Seniors By Misuse of Powers of Attorney
Case Example
Remedies For Victims
Financial powers of attorney (POAs) are important legal instruments that grant full legal authority over a person’s financial affairs, unless the POA expressly limits the appointed agent’s power in some way. The scope of the appointed attorney-in-fact’s powers is set by law and, unless specifically limited, extends to almost every form of financial transaction. See Cal. Prob. Code § 4401 (statutory form for financial POA). (There are also medical powers of attorney, known as Advance Health Care Directives, which are also powerful legal instruments and are also governed by statute. Cal. Prob Code § 4701) The potential for abuse of the broad powers granted under powers of attorney 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. The burden of making decisions for a 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 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 Santa Clara County call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).
Case Example Of Misuse Of Power Of Attorney
In one reported case, a California man was convicted on one felony count of forgery after misusing his power of attorney to steal over $120,000 from the principal’s annuity policy. The man was sentenced to probation and ordered to pay $120,000 restitution to the beneficiaries of his now deceased victim. Ten years ago, the principal had purchased a $1.2 million annuity policy. Just before that, the principal was diagnosed with early onset dementia, according to authorities. In the following year, the defendant obtained power of attorney for the principal because of his diagnosis. An investigation by the Department of Insurance found that the defendant misappropriated over $120,000 from the principal’s annuity by making six separate withdrawals from the policy without the principal’s knowledge. Defendant allegedly withdrew the funds by impersonating the principal during telephone calls with the insurance company and forging the policy beneficiary’s signature on documents. As a result of the defendant’s fraudulent actions, the principal incurred an additional loss of approximately $92,000 due to penalties and early withdrawal fees from the insurance company, according to the Insurance Department.
Remedies For Victims
In addition to possible criminal consequences, 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. 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 Santa Clara County. 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.
