A Power of Attorney is nothing to take lightly. The responsibility and trust vested in a person being granted that power, however, is immense, and a lot can go wrong if care is not taken when establishing this relationship. If you suspect that someone is the victim of Power of Attorney abuse, you need to understand what it means and gather evidence that it’s happening or happened. Here’s how do you prove Power of Attorney abuse.
What Is Power of Attorney?
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. This authority can cover various aspects of the principal’s life, including financial, healthcare, and legal decisions. While POA can be a crucial tool in managing affairs, it can also open the door to potential abuse if not handled carefully.
Duties of a Power of Attorney Agent
Agents carry a fiduciary duty, meaning a duty to act in the best interest of the principal.
Here are a few of the duties of an agent:
- Informing the principal of all activities they perform.
- Keeping accurate records of all financial transactions completed on behalf of the principal.
- Only acting on behalf of the principal in the specific capacities listed in the Power of Attorney document.
- Keeping the agent’s property separate from the principal’s property.
- Avoiding conflicts of interest, such as self-dealing transactions.
If the principal passes away or revokes the Power of Attorney, the agent cannot continue to act in this role any longer.
Types of power of attorney
In case of power of attorney, the agent is also the legal guardian of the principal. There are several types of powers of attorney, depending on the circumstances and needs of the principal. Below are the most common types of power of attorney:
General Power of Attorney: This is when the agent receives authorization to decide on all the aspects of the principles life until they pass away or are incapacitated.
Durable Power of Attorney: This is when the Power of Attorney continues to be in effect even after the individual becomes incapacitated.
Limited Power of Attorney: The agent’s authorization for POA is limited by the principal in both time and scope.
Springing Power of Attorney: The POA goes into effect after a triggering event as defined by the document.
Medical Power of Attorney: The POA authorizes the agent to make healthcare decisions for them, especially ones that are life-or-death events.
Financial Power of Attorney: The POA gives the agent the power to manage the finances of the principal, which includes taxes, bank accounts and real estate transactions.
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.
Abuse of a Power of Attorney
Abuse of a power of attorney
When you decide who you want to choose as your agent, it should be a person you trust completely. It should also be someone you know will carry out your wishes regardless of their feelings or opinions about them. Your designated agent could have access to your bank accounts and legally sign documents associated with your healthcare, financial affairs, and legal matters.
Although a power of attorney defines the agent’s role, their authority over someone else’s decisions can lead to abuse. When the agent violates their fiduciary duty to the principal or does not act in the principal’s best interests, this may be Power of Attorney abuse.
Common Types of Power of Attorney Abuse
It’s an unpleasant and disturbing feeling when you realize the person you’ve entrusted with a significant responsibility has betrayed you. You might have noticed signs that your chosen agent has violated your trust and abused their position in your life. Power of attorney abuse can take many forms. The most common types you should watch for include:
Identity theft: An agent can use the access they have to your personal information to open a new bank account, credit line, or investment account with your POA document.
Breach of fiduciary duty: The agent or attorney-in-fact has a fiduciary duty to act in your best interest from the moment the POA becomes effective. If they breach their duty in any way, they could be liable for lost money or assets.
Embezzlement: Under certain circumstances, a financial POA grants the agent authority over every financial aspect of a person’s life. With complete access, the agent can embezzle funds from your account into theirs or transfer property that is supposed to go to your named beneficiaries.
Medical abuse: A medical power of attorney gives the chosen agent the responsibility of deciding your medical treatment when necessary. If you’re unconscious or incompetent, you can’t inform your doctors of the healthcare you want. Your agent might choose to move you into a nursing facility against your wishes or ask your doctors to use life-saving measures you don’t want.
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.
What should I do if I suspect Power of Attorney abuse?
The options for addressing Power of Attorney abuse will generally depend on the type of abuse. If it is your own Power of Attorney, seeking legal help from an attorney is a good first step. You may need help to even do so. In some situations, such as physical abuse or neglect, contacting law enforcement as soon as possible after an incident may be necessary.
If you suspect a friend or loved one is being abused or taken advantage of by their Power of Attorney agent:
- You can report suspected physical abuse or neglect to local law enforcement. Providing evidence, such as photos, video, or a statement can be helpful.
- You might consider contacting an attorney to discuss your suspicion before contacting law enforcement if you suspect financial abuse that is not blatantly obvious. These matters can be rather complex. What you believe to be unreasonable conduct may actually be standard procedure.
- You may contact the state or local adult protective service agency, which may investigate abuse or fraud committed against seniors and adults who have a disability. Find your state or local agency by visiting the National Center on Elder Abuse.
How do you prove power of attorney abuse?
How do you prove power of attorney abuse?
To prove power of attorney abuse, you’ll need to first review the Power of Attorney (POA) agreement to understand the agent’s authorized powers. Next, gather financial records, legal documents, and additional evidence to identify any unauthorized activities or transactions. And then if suspicious activities are detected, consult with an attorney and consider pursuing legal action against the abusive agent.
Gathering Evidence: Proving the power of attorney (POA) abuse involves collecting compelling evidence that substantiates your claims. This could include financial records, transaction histories, emails, and any documents showcasing the agent’s misuse of authority.
Demonstrating Discrepancies: Highlighting inconsistencies between the agent’s actions and the principal’s best interests is key. Pinpoint financial transactions or decisions that deviate from what the principal would have wanted or needed.
Establishing Intent: Showing that the agent intentionally acted against the principal’s interests is essential.
Expert Testimony: Seeking expert opinions from professionals like financial advisors or elder law attorneys can lend credibility to your claims.
Medical Records and Assessments: If the principal’s health is a factor, medical records and assessments can provide valuable context.
Witnesses and Documentation: Eyewitnesses who can testify about the agent’s actions or the principal’s expressed wishes are invaluable.
Legal Assistance: Engaging a skilled attorney specializing in elder law or estate litigation is crucial. They can guide you through the legal process, help gather the necessary evidence, and present a compelling case to prove the power of attorney abuse.
Pursue Legal Action: Depending on the severity of the abuse and the evidence you’ve gathered; you may need to pursue legal action against the abusive agent. This can include; Filing a lawsuit for breach of fiduciary duty, fraud, theft, or other related claims, petitioning the court to revoke the power of attorney and appoint a new agent or guardian, Seeking damages, restitution, or other remedies to compensate the principal for losses caused by the abuse.
What Is the Penalty for Power of Attorney Abuse?
The penalty for Power of Attorney abuse depends on the nature of alleged abuse. Sometimes. It can be straightforward to revoke the agreement, other times, the penalty could include jail time and hefty fines, particularly if the acts of the agent were criminal in nature.
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.
What Is the Statute of Limitations on Power of Attorney Abuse?
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.
Conclusion
In conclusion, by giving someone your financial or medical rights it sometimes comes with self-dealing against principal interest. Thus, recognizing and addressing power of attorney abuse is important for safeguarding individuals’ rights. Here the question came How do You Prove Power of Attorney Abuse? It can be done by detecting signs, collecting evidence, and seeking legal aid, you can take proactive measures against abuse, ensuring justice prevails. Your actions contribute to a future where abuse is swiftly countered, securing the well-being and dignity of those involved.
FAQs
What documents help prove power of attorney abuse?
Financial statements, bank records, credit card statements, receipts, ledgers, wire transfer records, and legal documents prove unauthorized activity. Also collect evidence of forged signatures, identity theft, or changed account beneficiaries.
If abuse is suspected, should the power of attorney be immediately revoked?
Consult an attorney first. Immediately revoking power of attorney could alarm the abuser and stop him from further exploit assets. Collect documentation in secret. Then the attorney can file for an injunction to freeze accounts during investigation.
Can someone go to jail for abusing their power of attorney status?
Absolutely. Power of attorney abuse that involves criminal activities like embezzlement, forgery, identity theft, or extortion can result in prosecution and imprisonment depending on state laws and the extent of the abuse.
How can power of attorney abuse be prevented before it starts?
Require regular accountings. Name co-agents who monitor each other. Ask trusted friends or family to also review statements. Consider a professional fiduciary rather than a family member.
Who can file a civil lawsuit for power of attorney abuse?
The senior victim, relatives with an interest in the estate, or a court appointed guardian can file. The attorney must prove standing to show damages from the exploitation.
Can you sue a power of attorney?
Yes, you can sue a Power of Attorney (POA), or more accurately, if the agent acts in ways that are harmful to the principal’s interests or outside the authority granted by the POA document, legal action can be taken.
