Power of attorney is, as the name implies, powerful. This makes it ripe for abuse if the wrong person acquires that power, and it also means the position has to be subject to a lot of scrutiny even when it’s in good hands. Perhaps you have gotten power of attorney and simply want to be informed. Maybe an agent is already misusing their authority. Whatever the case, this article will help you learn more about the power of attorney abuse in California.

A power of attorney is a legal document intended for you, the principal, to assign authority to someone, the agent or attorney-in-fact, to handle your affairs. But what happens when this power/authority is misused? Keep reading to learn to uncover, prevent, or fix power of attorney abuse in California.

How Do Agents Abuse a Power of Attorney?

An agent or attorney-in-fact controls your finances and many of your personal affairs. Since they make most, if not all, of the decisions, a breach of their fiduciary duty (often in the form of financial abuse) can arise.

Power of attorney abuse typically occurs when the attorney-in-fact has ulterior motives or isn’t acting in the principal’s (the person they’re responsible for) best interest. If someone with power of attorney transfers funds or sells any personal property belonging to their charge, it has to be for the principal’s gain. Failure to do this constitutes financial abuse. A common example of abuse concerning financial matters is an agent withdrawing money from a conservatee’s account and transferring it to their won.

Abuse or misuse of power of attorney often happens when a principal is incapacitated since they can’t speak up or have the mental capacity to express himself. Hence, financial abuse is pervasive among elderly people. This form of abuse is known as elder abuse.

Abuse or misuse of a power of attorney occurs when an attorney-in-fact:

  • Takes up your identity and information to perpetrate fraud and exploit the real property
  • Puts your personal information for sale online
  • Exploits a vulnerable principal with physical and mental impairment
  • Gives authority to another unauthorized person
  • Uses power of attorney to make decisions even after the principal’s death
  • Makes a counterfeit POA with the principal’s signature
  • Alters the principal’s will without their approval
  • Steals and uses money from the principal’s account without their approval
  • Takes ownership of the principal’s property without their permission

How to Prevent Abuse of Power of Attorney

Power of Attorney Abuse in California

Although a power of attorney creates a space for financial abuse and misuse, you can reduce its risk. Here are some things to consider as you set up your power of attorney to prevent financial abuse and law enforcement agency involvement down the line.

Pick the Right Agent

You should pick a trustworthy person possible as your representative. Although even with this, you still have to reconsider your decision as even the most dependable people can change and make bad financial decisions due to certain issues.

Much financial abuse and other dependent adult abuse cases arise from those who exploit incapacitated people who can’t speak out due to a mental decline, especially elderly people. These folks often have a caregiver who provides medical care or daily assistance, it might be tempting to assign power of attorney to this caregiver. However, as a rule of thumb, you should not grant a power of attorney to your caregiver, especially regarding your financial affairs. It is generally best to give a trusted friend or reliable family member durable power of attorney instead.

Use a Limited POA

Be wary of opting for durable powers of attorney, which permits absolute or near-absolute powers of attorney over a principal’s affairs. Fewer areas are open to the agent when you use a limited power of attorney. A limited power of attorney is beneficial since it doesn’t give absolute authority or durable powers over all your affairs.

Monitor Account Changes

You should closely look at what goes on in your financial account or the financial account of a loved one under a PoA arrangement, especially if they have limited mental capacity. Check with your financial institutions for any unwarranted financial decisions that can imply possible financial abuse.

Educate Yourself

You can equip yourself with information on abuse of elder situations and the powers of attorney relating to elderly people from resources from the Journal of Elder Abuse and Neglect. This regular journal covers up-to-date topics to keep you informed about various elder care issues, including power of attorney.

Responding to Power of Attorney Abuse in California

Maybe you caught an agent exploiting a principal’s personal property. Even worse, perhaps you’ve discovered signs of physical abuse or heard reports of abuse from others. The instant you notice this, you have to immediately move against it.

Deciding to get a new attorney-in-fact might take weeks to come to effect, especially when financial institutions are involved. So what do you do to protect someone with a lack of decision-making capacity from financial or physical abuse in the meantime?

The federal government, through its Adult Protective Services (APS) Licensing agency, handles every elder abuse report. APS has a committee for the prevention of elder abuse when agents misuse their durable powers. It also takes care of other forms of abuse such as psychological abuse, financial crimes, economic crime, and physical violence, besides creating awareness of child abuse.

You can make a report through this agency to take action against financial or physical abuse against someone with a lack of capacity. Consult with this licensing agency if you feel like your loved one has experienced some form of dependent adult abuse. You can also decide to go ahead with a lawsuit if you need to recover personal property belonging to the principal.

Who Can Contest a Power of Attorney?

Typically, principal/dependent adults can invalidate a power of attorney and strip the agent of their authority. However, if a principal becomes or is incapacitated and loses their decision-making capacity, these family members can contest a POA on behalf of the impaired person

  • Siblings
  • Parent
  • Adult children

What are the Civil Penalties for Power of Attorney Abuse in California?

When agents in a position of trust abuse their authority in California, it often leads to criminal or civil offenses. More so, some violations are graver than others. Here are the state pages for civil charges in California and criminal charges in California. The penalties for these charges are dependent on the gravity of the abuse on the elderly people, which can include mental suffering, physical abuse, violent crime, and more.

If the abuse is a civil offense, the penalty that the attorney-in-fact incurs is:

  • Compensation with interest
  • Lawsuit

If the abuse committed is categorized as a criminal offense (for example, stealing from trust funds or committing a violent crime), the penalty includes:

  • Prosecution for embezzlement
  • Prosecution for fraud
  • Incarceration

Suppose a loved one is the victim of power of attorney abuse. In that case, you can help the impaired person take other legal action, like conversion and breach of fiduciary in California. You can also take swift action to set up a new power of attorney for someone who lacks general or financial decision-making capacity. Click here for help with your paperwork from A People’s Choice.

How a Third-Party Can Challenge a Power of Attorney

Power of Attorney Abuse in California

It’s not only the incapacitated adult or dependent person who can counteract or challenge a power of attorney. A family member or trustee can move to override the principal’s power of attorney if there are signs of psychological abuse, if the principal is not receiving proper financial assistance, or if they hear elder abuse reports. As a third party, you can do this using these three steps.

Talk to the Principal

If the principal has the mental capacity to express themselves, you can talk to them. It is possible they haven’t taken note or had their suspicions. Domestic settings are fine for this chat. Ask questions like how their account has been faring, if they sense any misconduct, or if their health care providers have been acting more concerned than usual. The principal’s financial institutions can also give you a report on the account’s activities.

The impaired person might not know if any form of abuse is bubbling under the surface, so you can check for them. If they have records and accounts available, you can go through them to ensure all is in the right place.

Confront the Agent

The next step is addressing the agent with the powers of attorney. However, you must ensure that the supposed dependent adult abuse wasn’t just a misunderstanding between the agent with a sound mind and the dependent principal before confronting the agent.

This can be especially difficult in cases of reporting spouse abuse from a spouse who serves as power of attorney for someone with a lack of capacity. It can also be extra complicated if long-term care facilities are involved.

You may wish to speak to the agent with the principal with you, especially if the person with a lack of decision-making capacity is still verbal and somewhat aware of their financial affairs. This way, everything is open to discussion by both parties. Please inquire about the records of what they have done on behalf of the principal. This will help you know what they are doing with the principal’s finances.

File a Petition With California’s Probate Court

After you have confirmed abuse, take civil action by reaching out to California’s probate court. This step ensures that the current agent, who has abused their financial power, is removed and the process of getting a new one is on the way. This must happen even if the PoA physical abuse or mental abuse follows a spouse abuse model.

If you start with the probate court, as the contact person, you must ensure your documents are properly sorted and know how the process goes. Remember that proving the power of attorney abuse or a breach of duty can be difficult. Acquiring a new agent and terminating the agreement with the old one might take weeks to months, but the more organized you are, the smoother the process will be.

Get Help with your Power of Attorney Abuse in California Case from A People’s Choice

Resolving a dependent adult abuse case or power of attorney can come with a lot of paperwork. Usually, this can be exhausting, and a fraud attorney can absorb some of that burden. However, attorney fees can be prohibitively expensive. There is a more affordable alternative—A People’s Choice. We cannot provide legal assistance like an attorney, but if your case is on the simple side, we are likely all you need.

A People’s Choice is a Californian-certified platform that offers affordable and reliable document preparation for all your legal cases. Our legal document assistants can help you fill out your power of attorney document and any other documents you need. It isn’t common to have this kind of offer come by.

Visit A People’s Choice and get started! You can also get lots of helpful information on power of attorney on our blog. We cover protective services for any medical affairs or medical decisions, dependent adult abuse, physical abuse, breach of duty from service providers, reports of abuse, medical affairs, and other civil matters to help you navigate this area of the law.