Abuse of power of attorney can cause lasting harm to a principal or their estate if not addressed promptly. Even agents who are wrongly accused risk serious personal and financial consequences. Partner with a Keystone probate lawyer to protect your rights and take the right steps from the start.
Power of attorney (POA) abuse occurs when an agent or attorney-in-fact misuses their legal authority, breaching their fiduciary obligation to act in the best interests of the principal.
While power of attorney abuse can take countless forms, some of the most common include:
- Self-dealing: Using the principal’s assets for personal gain
- Misappropriation: Misusing or stealing the principal’s assets
- Mismanagement: Failing to perform duties properly, causing financial harm
- Commingling: Mixing personal funds with those of the principal
- Unauthorized transactions: Overstepping the authority granted by the POA
- Fraud: Using a false POA or falsifying the principal’s signature
The penalties for abuse of power of attorney generally align with the nature of the misconduct. For instance, if an agent misappropriates the principal’s assets, proven misconduct will likely lead to recovery of the stolen assets and damages. Similarly, if an agent sells property without proper authority, penalties may focus on unwinding the transaction and holding the agent accountable for resulting losses.
Addressing POA misuse promptly and pursuing the appropriate legal remedies can often fully reverse any damage. The longer abuse continues unchecked, however, the greater the risk that losses will be permanent, potentially impacting not only the principal but also their beneficiaries and heirs — as fewer assets will remain for them after the principal’s death.
Whether penalties for abuse of power of attorney are pursued before or after the principal’s death, acting quickly is critical. The same urgency applies to those falsely accused of POA abuse. Ignoring allegations may seem easier, but without active involvement or skilled legal representation, a falsely accused agent could still face personal liability and significant financial consequences. Even unproven allegations must be addressed with experienced legal guidance to protect your rights and assets.
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Can Power of Attorney Misuse Lead to Criminal Charges?
Power of attorney misuse can result in criminal charges in California, but such cases are extremely rare. This remains true even when the financial harm caused exceeds the state threshold for a felony, which is $950.
California generally treats POA abuse as a probate or civil matter rather than a criminal one. In these cases, penalties are typically focused on restitution, meaning the agent may be required to personally reimburse the principal for losses caused by their actions. In some instances, additional damages may also be awarded, and any unauthorized actions taken by the agent may be reversed.
The preference for civil penalties stems from the fact that they more directly benefit the principal. Because losses from POA abuse are often substantial, full reimbursement is generally far more valuable to the principal than seeing the agent face jail time.
That said, criminal charges can be pursued in certain circumstances — sometimes alongside civil penalties.
Criminal charges are more likely when:
- The harm caused was substantial.
- The abuse involved egregious tactics.
- Financial misconduct was coupled with physical abuse.
- The principal was especially vulnerable due to age or incapacity.
Common Civil Penalties for Abuse of Power of Attorney
Civil penalties for abuse of power of attorney typically correspond with the type of misconduct committed and the circumstances involved.
The sections below outline the most common civil penalties for power of attorney abuse and when each typically applies.
Removal of the Agent
Removal is only necessary if abuse is discovered while the principal is still alive but lacks the capacity to revoke the power of attorney themselves. In such cases, the principal’s loved ones or a legal representative (e.g., a conservator or trustee) may petition the court to revoke the POA to protect the principal’s assets.
For instance, suppose an agent is authorized to use the principal’s credit cards for legitimate expenses but is instead making large, personal transactions. If the principal lacks capacity, a family member or representative can seek removal of the agent to stop further misuse.
While removing an agent may stop ongoing abuse, it is usually just one step in restoring the principal’s financial wellbeing.
Asset Recovery
Asset recovery is pursued when an agent misappropriates the principal’s property, such as using funds or transferring assets for personal gain.
For example, if an agent improperly transfers the principal’s car title or real estate deed to themselves without consent, a court can unwind the transaction and return the assets to the principal.
Recovering misappropriated assets is essential but may not fully address all losses, which is why additional remedies like damages and surcharges are often needed.
Monetary Damages and Surcharges
Damages and surcharges are intended to make the principal or their estate financially whole. Compensatory damages cover the actual losses incurred, while punitive damages, also called surcharges, hold the agent personally liable. In egregious cases, surcharges can double or triple the amount owed.
For instance, if an agent continues using a power of attorney after learning of the principal’s death to deplete accounts, the personal representative of the principal’s estate could seek the return of misappropriated funds, accrued interest and potentially double damages or treble damages for knowing misconduct.
Determining damages usually requires a detailed review of financial records to assess losses, the agent’s intent and any factors justifying enhanced damages. Because this process can involve forensic accounting, working with a lawyer is critical to ensure full recovery.
Reversal of Unauthorized Actions
When an agent oversteps their authority — using a power of attorney after death, falsifying documents or taking actions without consent — those actions may need to be reversed.
For example, if an agent redirects the funds from an account intended to pass to their siblings after the principal’s death into an account intended to pass to them, a court can undo the transfer to honor the principal’s original intentions.
Like other remedies, reversing unauthorized actions may not fully compensate the principal. Monetary damages and surcharges are often pursued alongside reversals to make the principal or estate whole.
Attorney’s Fees and Costs
If power of attorney abuse is litigated to trial and the plaintiff prevails, attorney’s fees and costs may be recoverable, especially in cases of intentional misconduct. However, such awards are not guaranteed, so it is wise to proceed under the assumption that you may need to cover your own legal expenses.
Even when cases settle out of court, reimbursement of attorney’s fees can sometimes be included as part of the settlement — but this requires agreement from the opposing party.
What Factors Affect the Penalty for Abuse of Power of Attorney?
Several factors can influence the type and severity of penalties for power of attorney misuse. The following are some of the most important considerations courts take into account.
Amount of Financial Harm
It goes without saying: the greater the financial harm caused by power of attorney abuse, the more severe the penalties are likely to be. Courts aim not only to make the principal or their estate whole but also to fairly compensate them for the additional troubles caused by the misconduct.
In cases involving extreme financial loss, criminal charges may be pursued, though such cases remain very rare in California.
Vulnerability of Principal
Elderly adults and those with cognitive impairments or dependencies are among the most common victims of power of attorney abuse. Because of their heightened vulnerability, California usually imposes harsher penalties on individuals who exploit them.
Dependent or elder financial abuse — whether through a POA or other means — is taken very seriously. Enhanced remedies, such as double or treble damages, are often available to address both the financial and emotional impact of the misconduct.
Nature of the Abuse
While all forms of power of attorney abuse are unlawful, courts treat particularly egregious misconduct with greater severity. When the harm extends beyond financial loss to include physical, emotional or psychological damage, harsher penalties may be imposed. In extreme cases, certain abuses may even trigger criminal charges.
Whether the Misconduct Was Intentional or Negligent
Intentional power of attorney abuse is generally penalized more harshly than actions resulting from negligence or good-faith mistakes. Even unintentional misconduct can lead to civil penalties, such as asset recovery or reversal of unauthorized transactions, but enhanced damages are typically reserved for willful or reckless misconduct.
Put simply, if an agent knowingly acts in a way that could harm the principal — or acts recklessly without regard for potential harm — courts are far more likely to impose significant financial penalties.
Agent’s Prior Conduct
An agent with a history of power of attorney misuse or other fiduciary breaches is less likely to be believed when claiming they acted in good faith. Prior misconduct can result in harsher penalties and, in some cases, shift the burden of proof to the agent, requiring them to demonstrate that they acted prudently, loyally and in the principal’s best interests.
While not every case involves past misconduct, a plaintiff’s attorney will often highlight an agent’s prior behavior to support the severity of penalties sought on behalf of the principal or estate.
Who Can Seek Penalties for Power of Attorney Abuse?
Not everyone has legal standing to pursue penalties for power of attorney abuse. The right to bring a claim depends on the principal’s mental capacity and the relationship of the person seeking relief to the principal or their estate.
Below is a breakdown of who may have authority to act — and when that authority applies.
Principals With Capacity
A principal who retains mental capacity has the primary and often exclusive right to seek penalties for abuse of power of attorney. If the principal is competent, no one else typically has standing to litigate on their behalf. A capable principal may revoke the POA at any time and petition the court for appropriate relief.
That said, POA abuse frequently occurs after a principal becomes incapacitated. Agents may take advantage of declining cognition, assuming the principal is less likely to detect or challenge misconduct.
When a principal lacks capacity, they cannot revoke the POA or pursue legal remedies on their own. In these situations, court intervention is required. Unlike a principal with capacity — who may revoke a POA without cause — a court will revoke authority or impose penalties only if it is proven, by a preponderance of the evidence, that abuse more likely than not occurred.
Family Members with Standing
Family members and other concerned individuals can generally seek penalties on the principal’s behalf by filing a petition for revocation of the POA and appropriate remedies.
In some cases, a family member may instead petition the court for conservatorship. When an abusive agent is removed, the principal may be left without anyone to manage their financial or personal affairs. Courts often want assurance that appropriate safeguards are in place before moving forward.
If a family member is willing and the principal is sufficiently incapacitated, seeking conservatorship may be the more appropriate choice. A conservatorship allows the appointed person to manage not only the POA abuse claim but also the principal’s broader financial, legal and possibly personal affairs.
Legal Representatives
If an incapacitated principal who is still living has a court-appointed conservator, they generally have automatic authority to pursue a power of attorney abuse claim on their behalf.
If the principal is deceased, the personal representative of the estate typically has standing to pursue recovery, damages and other penalties for the benefit of beneficiaries or heirs.
A successor trustee may also have authority to litigate POA abuse claims after the principal’s incapacity both before and after their death, but only if the assets affected by the misconduct were trust assets. Their authority does not extend to non-trust property.
Court Investigator or Public Guardian
Court investigators and public guardians do not usually initiate power of attorney abuse claims on their own. Their involvement typically begins after a report of suspected abuse — often from an agency such as Adult Protective Services.
In rare cases, if the principal is incapacitated and has no family member or representative able to act, a court investigator or public guardian may initiate proceedings to protect the principal and seek appropriate penalties.
Do You Need a Lawyer to Pursue Penalties for Abuse of Power of Attorney?
Technically, you are not required to hire a lawyer to seek penalties for power of attorney abuse. However, pursuing a claim without experienced legal guidance is rarely advisable. POA abuse cases are legally and financially complex, and even small procedural missteps can weaken an otherwise valid claim.
An experienced power of attorney lawyer understands how these cases unfold — from proving breaches of fiduciary duty to calculating damages and navigating court procedures. If the matter proceeds to litigation or trial, skilled representation becomes especially important. A lawyer can present evidence effectively, respond to counterarguments, protect your rights and advocate for the full range of remedies available.
How Can a Power of Attorney Lawyer Help?
A power of attorney lawyer can guide your case from the earliest stages of investigation through resolution — whether that resolution occurs in court or through settlement. They can also evaluate whether alternative, out-of-court solutions may be available to reduce time, expense and stress.
Below are some of the keyways a POA lawyer can assist you.
Investigating POA Abuse Claims Before and After the Principal’s Death
If you suspect POA abuse but are unsure whether misconduct has occurred, a lawyer can help assess the situation objectively. Remember, POA abuse claims can be pursued regardless of whether the principal is alive or deceased.
You do not need definitive proof before consulting an attorney — determining whether abuse has occurred is part of the lawyer’s role.
An attorney will typically review financial records, governing documents, and any other available evidence. They will assess red flags, identify inconsistencies, and determine whether further investigation is warranted. Because lawyers are trained to spot patterns of fiduciary misconduct, they can quickly distinguish between legitimate transactions and suspicious activity.
Determining Amount of Financial Harm and Applicable Penalties
Once abuse is identified, accurately calculating the financial harm becomes critical. This often requires a detailed review of the agent’s transactions and, in more complex cases, forensic accounting.
If the agent attempted to conceal misconduct, losses may not be immediately obvious. A lawyer can trace transfers, quantify damages, assess interest and lost value, and determine whether enhanced remedies — such as double or treble damages — may apply.
With a clear understanding of the harm suffered, your lawyer can draft a precise and compelling petition seeking appropriate civil penalties.
Filing POA Abuse Claims
To initiate a POA abuse case, a formal petition must be filed with the court. The strength of that petition can significantly impact the outcome of the case. An experienced lawyer will ensure the petition clearly states the legal basis for the claim, outlines supporting evidence and specifies the remedies sought.
In many instances, a well-drafted petition also encourages settlement. When the opposing party sees that the claims are well-supported and legally sound, they may be more inclined to resolve the matter on favorable terms rather than proceed to trial.
Defending Allegations of POA Abuse
Not all allegations of POA abuse are valid. Family disputes, misunderstandings, or strained relationships can sometimes give rise to false or exaggerated claims.
Even so, accusations cannot simply be ignored. A lawyer can analyze the allegations, identify weaknesses in the opposing party’s case, gather supporting evidence, and present a focused defense. A strong defense can result in dismissal of the petition or avoidance of penalties altogether.
Navigating the Settlement Process
Most POA abuse disputes resolve through settlement rather than trial. Settlement can be more efficient and cost-effective, but it is still a high-stakes process.
Having a lawyer during negotiations or mediation ensures that you fully understand the implications of any proposed agreement. Your attorney can evaluate risks, advise you on reasonable compromises, and advocate for terms that protect your interests.
Because these cases often involve significant financial consequences and emotionally charged family dynamics, experienced legal guidance can provide clarity and stability when decisions matter most.
FAQs on Penalties for Abuse of Power of Attorney
Still confused about the penalties for abuse of power of attorney? Explore the frequently asked questions below for additional clarity.
What is the punishment for a forged power of attorney?
Forging a power of attorney in California can result in both civil and criminal punishment. Most POA disputes are handled in probate court, but the act of forging a document or falsifying a principal’s signature is itself a criminal offense under California law.
A forged power of attorney is void and unenforceable from a civil standpoint. Once the forgery is proven, the court can invalidate the document, reverse any transactions made under it and order the return of misappropriated assets. The forger may also be held personally liable for damages, interest and, when appropriate, enhanced damages.
Criminally, forging a power of attorney may constitute fraud or elder financial abuse, depending on the circumstances. Power of attorney fraud penalties can be extremely harsh if prosecuted, but California courts tend to prioritize civil remedies that restore the victim’s losses.
What is the punishment for a sibling abusing power of attorney?
A sibling abusing power of attorney results in the same potential civil and criminal punishments as anyone else abusing a POA. California law does not provide special protection or reduced consequences simply because the wrongdoer is a family member.
That said, cases involving siblings can be more complex in practice. Family dynamics, longstanding conflicts, or misunderstandings about authority can complicate both the investigation and litigation process. Emotions often run high, which can make it difficult to evaluate the situation objectively.
Because of these added layers, working with an experienced lawyer can be especially important in sibling POA disputes.
What is the penalty for a power of attorney withdrawing money after death?
The minimum penalty for someone with power of attorney withdrawing money after death is generally an order to return the improperly withdrawn funds to the estate, along with any related damages. This is because a power of attorney automatically terminates upon the principal’s death, and any authority granted under it immediately ends.
A key factor in these cases is whether the agent knew the principal had passed away at the time of the withdrawal. If the agent acted without knowledge of the death, a court may simply require repayment of the funds without imposing additional personal liability. However, if the agent knowingly used the POA after death, courts are far more likely to impose harsher penalties, such as double or treble damages.
What is the penalty for a power of attorney transferring money to themselves?
The penalty for someone with power of attorney transferring money to themselves generally includes both compensatory and punitive damages.
When an agent transfers funds to themselves without the principal’s consent, it is considered self-dealing, which constitutes a breach of fiduciary duty. Such breaches can result in surcharges that hold the agent personally liable for losses caused by the misconduct, while compensatory damages are intended to restore the principal to their original financial position.
If the principal is still alive, removal of the agent is also a likely outcome.
Need to challenge or pursue penalties for abuse of power of attorney?
Whether you are seeking to pursue penalties for power of attorney abuse or defend against allegations, Keystone’s experienced probate attorneys are prepared to guide you every step of the way. We represent agents, principals and families in complex POA disputes, protecting their rights and advocating for their best interests.
Contact us today to learn how our legal team can help you move forward with clarity and confidence.
