Is a sister abusing her power of attorney? Did a friend engage in abuse of power of attorney after the death of the principal? Is a loved one not fulfilling their power of attorney responsibilities to family members?
If you or someone you love has been exposed to power of attorney abuse, it may be necessary to take legal action to not only have the power of attorney document revoked, but also to recoup damages, when applicable, from the abuser(s).
Power of attorney misconduct can cause severe financial, physical and/or emotional harm to the principal, so it’s important to be aware of the signs of abuse and take immediate action if you suspect an agent to be misusing their power. If you need help proving power of attorney abuse, recovering stolen property or damages from the agent, or defending a claim of POA abuse that was brought against you, contact a Keystone power of attorney abuse lawyer today.
What is considered misuse of power of attorney? How do you prove power of attorney abuse? What is the penalty for power of attorney abuse? Is there a statute of limitations on power of attorney abuse? Learn the answers to these questions from Keystone Law Group’s comprehensive guide on power of attorney misconduct.
If you said “yes” to any of the questions above, our team can help bring your case to court. Get in touch with the team at Keystone Law Group today to discuss your options.
A power of attorney (POA) is a legal document that gives one person the authority to act on behalf of another person in personal, or financial and legal matters. The person who has been granted POA is called an attorney-in-fact or agent. The person who enacted the POA is called the principal.
While a power of attorney can be used for a wide range of purposes, most people use it to designate a person they trust to manage their affairs should they become incapacitated in the future (due to old age or dementia, for example). If a person becomes incapacitated prior to signing a POA, it will not be valid in the eyes of the court. Instead, they may need a type of legal arrangement known as a conservatorship.
It is easy to confuse the terms power of attorney and conservator, but there is a notable difference between them. Attorneys-in-fact are named by the creator of the document prior to their incapacitation, whereas conservators are appointed by the court after a person has become incapacitated. Because powers of attorney allow a person to put their futures in the hands of someone they trust (as opposed to the court choosing who will oversee their life), they have become popular estate planning tools.
Power of attorney misconduct occurs when the legal document that allows an attorney-in-fact to act on a principal’s behalf is misused or not followed. Power of attorney misconduct can include everything from financial exploitation and fraud to negligence.
There are many different kinds of power of attorney, and each comes with its own set of guidelines; however, all of them authorize the agent, known as an attorney-in-fact, to make certain decisions or take certain actions on behalf of the principal.
If you suspect that the person appointed as your or your loved one’s agent is misusing their authority, it is important to act quickly. If you have concerns about power of attorney abuse and you are mentally competent, you can simply revoke your POA; however, contesting a power of attorney on the principal’s behalf may be necessary if the principal is no longer competent, as they are would not be permitted by the law to revoke it themselves.
If your POA abuse claim is heard, it can open the door to other legal actions, such as the establishment of a conservatorship, to protect your loved one and their finances.
The punishment for power of attorney abuse will depend on the severity and nature of the alleged abuse. Sometimes, the penalty could be as straightforward as the power of attorney being revoked by the court. Other times, the penalty could include jail time and hefty fines, particularly if the acts of the agent were criminal in nature..
Regardless of whether the agent’s acts were criminal, they can still be removed as attorney-in-fact and forced to pay damages to the principal if the abuse caused the principal to suffer financial or bodily harm.
For example, if an attorney-in-fact perpetrated medical power of attorney abuse by neglecting to provide the principal with their medications, they may be forced to pay damages to the principal to compensate them for any harm the principal suffered as a result of their neglect.
Likewise, if an agent misappropriated the principal’s money for their personal use, they could be forced to return the money, and pay the principal’s attorney’s fees and possibly even punitive damages, depending on the extent of the abuse.
California Probate Code section 4231.5 describes in more detail the circumstances that could cause an attorney-in-fact to potentially have to pay damages for a breach of fiduciary duty. The full list of duties under a power of attorney are laid out in California Probate Code sections 4230 – 4238. If you suspect the attorney-in-fact to be breaching their duties, consult with a lawyer about suing them for fiduciary misconduct.
There is no specific statute of limitations that applies to power of attorney abuse. However, there are statute of limitations that apply to breach of fiduciary duty claims and elder financial exploitation claims, since misuse of power of attorney may constitute both breach of fiduciary duty and elder financial exploitation.
According to California Welfare and Institutions Code section 15657.7, an elder financial exploitation claim must be brought within four years of the facts constituting financial abuse being discovered or within four years of when the facts constituting financial abuse should have been discovered with reasonable diligence. Code of Civil Procedure section 343 provides a catch-all statute of limitations that covers claims for breach of fiduciary duty, which also must be brought within 4 years.
Of course, there are exceptions to the four-year statute of limitations, but as a general rule, the sooner you discuss your power of attorney misconduct case with a lawyer, the better. The attorney-in-fact will be able to continue abusing the principal until you bring your power of attorney abuse claim.
As a POA, you are responsible for making personal, financial and/or legal decisions on behalf of another person. This can be an especially daunting task if you are not familiar with POA laws and how to navigate the legal, medical and financial systems.
Keystone’s skilled abuse of power of attorney lawyers can help you understand your responsibilities so you can make informed decisions for the principal and avoid becoming the subject of power of attorney abuse claims. We can provide support and guidance as you navigate your new role to help protect you against liabilities and ensure you are acting in the principal’s best interests at all times.
One of the first things our POA abuse lawyers will do is to help you interpret the terms of the power of attorney document. Each POA document is different, so it is important you understand exactly what powers you have been granted and where your limitations lie.
For example, you may have limited authority to handle specific financial matters for the principal, such as paying bills or managing investments, or you may have broad authority to handle all of the principal’s financial affairs. Likewise, if you are a power of attorney for health care, you may be authorized to make certain medical decisions for the principal, like consenting to emergency medical procedures, but not others, without first seeking approval from the court.
If an agent oversteps the authority they have been granted, or if they do not abide by the procedure prescribed by the POA document for making decisions, their actions may constitute power of attorney misconduct. This is why having an attorney interpret the POA document is an important first step for all attorneys-in-fact.
As previously mentioned, if you are unhappy with your POA and you are mentally competent, then you can simply revoke the POA in the presence of a notary to end it.
On the other hand, if a person who is incapacitated has a POA, and the designated attorney-in-fact is allegedly abusing them, then a competent adult, whether that be the principal’s relative or their friend, can contest the POA to try to have it revoked.
If the principal is incapacitated, and the court agrees to revoke the POA, then it may be necessary to establish a conservatorship to protect their personal and financial interests, as appointing a new POA would not be an option. In California, for a POA document to be valid, it must be signed by a principal who is mentally competent.
Our experienced attorneys can help you gather evidence of fiduciary misconduct to build a strong case so the POA can be successfully revoked.
If POA abuse had been committed, and it resulted in the principal’s money or property being stolen, or in the principal suffering health consequences, then it may be possible to sue the POA agent to recover the stolen assets, as well as damages when applicable.
A Keystone POA lawyer can help you gather evidence to prove the extent of the damage caused by the POA and help you secure a favorable outcome in court.
If you are not sure why a power of attorney misconduct claim has been brought against you, you may have been wrongfully accused of abuse. Not all power of attorney misconduct claims are valid, especially if the POA agent acted in good faith.
Sometimes, an informed financial decision you make on behalf of the principal causes them to lose money, but it’s not because you had malicious intent, made an uninformed decision or were personally trying to gain from their loss. In the same vein, you might make a medical decision for the principal that ends up exacerbating their condition, but it’s not because you wished for them to suffer; you were only following their physician’s advice.
Neither of the scenarios mentioned above necessarily signal power of attorney abuse; nevertheless, a principal’s family and friends may still place the blame on you.
Even if you believe you are not at fault, it is recommended you have a power of attorney lawyer representing you. When abuse is successfully proven, attorneys-in-fact may be held liable for compensating the principal for any damage they caused from their own pockets.
Misuse of power of attorney is an issue that should not be taken lightly, regardless of whether you are the principal or a loved one of the principal. Learn the answers to the most frequently asked questions surrounding power of attorney abuse by clicking the boxes below.
There are many forms of POA abuse, and it is not uncommon for more than one form of abuse to be perpetrated against the principal. Some of the most common forms of power of attorney abuse include:
To prove power of attorney abuse, maintain a file of important documents related to the POA. Evidence can be in the form of financial records, medical documentation or eyewitness testimony, among other things.
Ultimately, contesting a power of attorney on account of abuse will come down to the type of abuse that allegedly was committed. For example, if a principal had a health care POA who was abusing them by withholding medical care, then the principal’s physicians may be able to attest to how the principal’s health has declined as a result of the POA’s inaction.
If a POA was stealing money from the principal’s bank accounts, then bank statements may be sufficient in proving the POA misconduct.
Contact Keystone if you need help gathering and presenting the necessary evidence to support your case.
If you are seeking confirmation about whether someone you know is a victim of power of attorney abuse, there are some telltale signs to look for. But remember that if an agent is abusing their power of attorney, chances are they are taking steps to hide it.
Signs of power of attorney abuse include:
The above signs don’t necessarily signal abuse; they merely warrant further investigation. If one or more of them applies to the situation of a principal you know, it would be advisable to get in touch with a POA abuse attorney as soon as possible.
Power of attorney abuse after death is a common form of POA misconduct. It consists of an attorney-in-fact continuing to use their power of attorney after the principal has died, even though powers of attorney become invalid by default upon death. For example, an agent may continue withdrawing funds from the deceased principal’s bank accounts.
In contrast to how POA abuse claims are handled when a principal is alive, POA abuse claims after the death of the principal are usually litigated by the executor/administrator of their estate or the trustee of their trust.
It is unfortunate that this type power of attorney misconduct often goes undetected until the principal’s estate or trust is accounting for the principal’s assets and discovers money or property to be missing. Thankfully, even if the principal cannot reap the benefits of successful litigation themselves, it will benefit those who stand to inherit from them.
Read this case study about how Keystone recovered millions of dollars’ worth of stolen money and property from a decedent’s abusers, who used POAs to gain access to his finances.
If you know that a POA was misused, you are probably wondering how to report power of attorney abuse. Keep in mind that not all cases of power of attorney abuse necessarily need to be reported. The nature and severity of the abuse will determine how you proceed.
If, for example, the agent’s abuse of the principal resulted in bodily harm, then it is urgent that the principal be protected from further harm at the hands of their agent. You should contact local law enforcement or Adult Protective Services right away, especially if the principal or their finances are under immediate threat.
If the abuse poses no immediate threat to the principal, you can share your concerns with a lawyer, who can advise as to the appropriate steps to take next.
It is also crucial to consult with a POA lawyer in the event the principal needs to recover stolen property and damages, because the longer you wait, the harder it will be to recover the property. You also may need to consult with a lawyer if a responsible adult, such as a conservator, needs to be appointed to manage the health care and/or finances of the principal once their POA agent is removed.