Marin County Financial Elder Abuse Attorneys: FAQs About Financial Power Of Attorney Abuse

ATTORNEY NEWSLETTER

What are financial powers of attorney?

Financial powers of attorney (POAs) grant full authority over a person’s financial affairs, and medical powers of attorney, known in California as an Advance Health Care Directives (AHCDs), grant authority over medical decisions and health care issues. The forms for both financial and medical POAs are found in California statutes. See Cal. Prob. Code §§ 4401 (statutory form for financial POA) and 4701 (statutory form for AHCD).

Why are powers of attorney important?

Powers of attorney of both types are important estate planning tools for all of us as we age; it is helpful to have such arrangements in place before the need for them arises and we are unable to execute the instruments.  The person granting the authority is referred to as the “principal” and the persons to whom the powers are granted are referred to as “agent(s)” or “attorney(s)-in-fact.”

Can misuse of a POA be financial elder abuse?

Yes, where the principal is 65 years old or above.  In fact, misuse of financial POAs is a recurrent form of financial elder abuse; we see cases everyday where an agent under a senior’s financial POA uses their power to steal, to create trusts, to transfer property, and open new accounts all with the intent of taking a senior’s property during their life or at death.  Any such misuse constitutes the crime of financial elder abuse (Penal Code § 368) and is grounds for civil liability (Cal. Welf. & Inst. Code § 15610.30) for extra damages and an award of attorneys’ fees and expenses for having to bring a case against a dishonest agent.  Cal. Welf. & Inst. Code § 15657.5. If an agent has misused a POA to your or an older loved one’s detriment in Marin County call us at (415)441-8669 or toll free at 1-888-50EVANS (888-503-8267).

Can you give an example of power of attorney misuse?

Yes.  In one recently reported case[1], a woman is accused of using an unlawfully obtained power of attorney to sell an elderly man’s home for $345,000 and use $319,000.47 in sale proceeds for herself and others.  According to police, the arrested woman attended a March 24, 2022, hearing concerning the elderly man. According to police, the hearing established that the man could not manage his own affairs and lacked the capacity to consent to services.   Police allege the woman, who knew of the man’s lack of capacity after attending the hearing, obtained a durable power of attorney from the man on or about September 1, 2022.  Police accuse the woman of using that document to arrange the sale of the man’s home and to open new bank accounts or retitle his existing accounts into joint accounts. The affidavit also alleges that she caused the man to sign an “AS IS” residential contract for the sale.  Following the home sale, police say $319,000.47 was transferred into a bank account bearing both the woman’s and the victim’s names.  Thena the woman withdrew the funds, according to police, and used the funds for herself and her husband and that the woman routed some of the money through payments to her cleaning business.

What are the remedies for seniors when their POA is misused?

Misuse of a POA is grounds for civil liability of twice any amounts taken and attorneys’ fees for the victim. Probate Code § 4231.5.  Any relative of an elderly principal has standing under the law to challenge the conduct of an attorney-in-fact for the elder and to force them to account for their transactions.  Probate Code §§ 4540(d) and 4541.  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.  Damages are also doubled under the Probate Code for any financial abuse of a senior.  Probate Code § 859.  Anyone assisting the Agent in taking a senior’s property is also guilty of financial elder abuse under the law.  Agents who wrongfully take the property of seniors (and their assistants in the taking) 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.

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 Marin 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:[email protected]”>[email protected]</a>.

[1] Evans Law Firm, Inc. was not involved in the case in any way.  The case was first reported on by a local newspaper.