Power of Attorney Abuse in California
What is a Power of Attorney in California?
A power of attorney is a legal document that grants the holder (called the agent) legal authority to act on behalf of another person (called the principal).
What is Power of Attorney Abuse?
Power of attorney abuse occurs when an agent who has power of attorney fails to act in the best interest of the principal. Quite often power of attorney abuse coincides with financial elder abuse because an agent often takes advantage of an older person. Power of attorney abuse includes misappropriation, self-dealing, fraud, forgery, theft, and breach of fiduciary duty.
Can you Contest a Power of Attorney?
Yes, you can contest a power of attorney in California. Usually, power of attorney abuse is resolved through mediation or settlement without going to court.
How Can I Prove There is Power of Attorney Abuse?
Often, financial records will show that an agent has profited by taking advantage of the principal. This is the case because agents are not supposed to directly gain anything when acting under a power of attorney. An agent is only to act in the best interest of the principal. Cal. Prob. Code §§4051, 4128. Thus, if an agent takes an action that results in their own gain instead of the gain of the Principal then they likely breached their fiduciary duty. (citation).
Power of Attorney Abuse and Siblings
When choosing a power of attorney, people often consider and choose one of their children. However, when a conflict arises between the chosen power of attorney and their siblings, this often leads to intensified and greater conflicts.
When a sibling is granted power of attorney, they can have authority to make legal and financial decisions for their parent(s). With such important powers, a sibling can engage in fraud, self-dealing and embezzlement to the detriment of the parent(s).
A sibling may abuse a power of attorney by opening joint bank accounts and naming themselves as a beneficiary or a co-owner. A sibling may purchase life insurance policies for their parent(s) and name themselves as the sole beneficiary.
Will an Agent Who Commits Power of Attorney Abuse See Jail Time?
Generally, no. Power of attorney abuse is handled in civil court not criminal court. Typically, these issues are resolved without a criminal charge being filed. If the agent who engages in power of attorney abuse is a child of the principal, it is unlikely the parent will choose to press criminal charges against their own child.
What Can I Do if I Suspect Power of Attorney Abuse?
If you suspect an agent is engaging in power of attorney abuse, you should contact a probate litigation attorney right away. Contact Talkov Law’s trust, probate and estate attorneys today for a free consultation at (844) 4-TALKOV (825568) or contact us online.
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