My Parent’s Power of Attorney Is Transferring Assets Against Their Wishes
If your family member has granted power of attorney to a trusted agent, both you and your family member can usually be confident that the agent will perform their duties according to your family member’s best interest. But what happens if the agent is only acting for their own gain? What can you do about abuse of power of attorney?
If you suspect that your family member’s agent is abusing their authority from a power of attorney in California, call us at the Bochnewich Law Offices in Palm Desert, California. Our attorneys can help you to identify abuse of power of attorney and work to bring the person responsible to justice.
The Role of the Power of Attorney
A power of attorney is a legal document that gives someone else (called an “agent” or “attorney-in-fact”) the power to act on your behalf in certain situations should you be unable to act yourself (due to travel or other absence) or should you become incapacitated.
You (the principal) can give someone (called an “agent” or “attorney-in-fact”) financial power of attorney or healthcare power of attorney. A healthcare power of attorney is a “durable” power of attorney, meaning that it does not end when you become incapacitated; your agent is legally obligated to fulfill your wishes and act in your best interest after you can no longer make decisions for yourself. (Financial power of attorney can also be durable.)
A healthcare power of attorney allows your agent to make medical decisions on your behalf should you become unable to make decisions on your own. In California, assigning a healthcare power of attorney is one step (besides creating a living will) towards creating an advance healthcare directive, which outlines your decisions for healthcare and end-of-life care.
Financial power of attorney gives your agent the legal power to handle your financial affairs—such as paying taxes, handling business and investment accounts, buying or selling real estate, and depositing Social Security checks. Financial power of attorney can be limited or general. For example, you can give someone general power of attorney to handle most of your financial matters for you, or you can give your agent limited power of attorney to handle your finances or undertake specific tasks for a set amount of time while you are traveling or absent for other reasons. General and limited powers of attorney end when you become incapacitated. All powers of attorney end at the principal’s death.
The person creating the power of attorney must be 18 years old or older, and they must be of sound mind. California has a statutory form that you can use to create a power of attorney; if you use this form, you must have the document notarized. If you did not use this form, you must either have the document notarized or sign the document in front of two witnesses. It’s encouraged that you do both.
Power of Attorney Abuse
Unfortunately, granting someone this much power over your affairs can be risky. If you’ve noticed that your family member is suspicious of the agent’s activities, listen to their concerns and contact an attorney. Someone abusing power of attorney might engage in the following behaviors:
Transferring assets to their own accounts or otherwise stealing money from the principal
Selling the principal’s personal information online
Granting someone else authority without the principal’s permission
Stealing the principal’s identity
Making poor medical decisions on behalf of the principal
Using undue influence on the principal while they are medically incapacitated for their own personal gain
What to Do If You Suspect Power of Attorney Abuse
Luckily, with the help of an attorney, you can take steps to remedy the situation if you suspect power of attorney abuse. The first step is to contact your attorney (and law enforcement if you suspect medical abuse or neglect). Your attorney will be able to help you gather evidence, which will be used to file a petition with the probate court in order to invalidate the existing power of attorney.
Depending on the kind of evidence that you have against the agent, they may be charged with embezzlement, fraud, breach of fiduciary duty (i.e., not fulfilling their legal obligation to act in your family member’s best interest), and conversion (or stealing). According to the State of California Department of Justice, “theft, embezzlement, forgery, fraud or identity theft with respect to property or personal identifying information of an elder or dependent adult” also constitutes elder abuse and can be punishable by up to four years in jail and a $10,000 fine.
Your family member can also revoke their power of attorney at any time as long as they are of sound mind, but issues can arise if they are incapacitated—in which case it is best to follow the steps above. Either way, it is important that you talk to a family law attorney to support you throughout the process.
Personal and Professional Legal Counsel
If you suspect power of attorney abuse, call us at the Bochnewich Law Offices, serving many areas of Southern California, including Riverside County, Los Angeles County, San Bernardino County, Orange County, and San Diego County. Our attorneys Peter M. Bochnewich and Adam Lubliner are ready to address your concerns, help you gather evidence, argue for your family’s best interest in court, and make sure that your family member receives the justice that they deserve. Call today for an appointment.