Power of attorney (POA) is a legal document that allows a person to appoint another person, known as an agent or attorney-in-fact, to make decisions on their behalf.
The agent has a fiduciary duty to act in the principal’s best interests and must manage their affairs accordingly.
Unfortunately, not all agents uphold this duty, and some may abuse their power for personal gain.
If you suspect POA abuse, it’s crucial to take action immediately to protect yourself or your loved one from further harm.
This article will provide essential information on identifying and proving POA abuse, including signs of abuse, steps to take, and available legal remedies.
Signs of Power of Attorney Abuse
POA abuse can be difficult to detect, especially if the agent is a family member or trusted friend. However, there are some red flags that you can look out for, such as:
1. Financial Changes
POA abuse may involve the unauthorized transfer of funds or properties from the grantor’s account to the agent’s account.
One of the most common signs of POA abuse is unusual financial transactions, such as cash withdrawals, transfers to unfamiliar accounts, or purchases inconsistent with the grantor’s needs or lifestyle.
If you notice sudden and significant changes in the grantor’s financial situation, such as unpaid bills, unusual withdrawals, or unexplained purchases, this could be a sign of financial abuse.
2. Isolation of the Grantor From Family and Friends
POA abuse may also involve the isolation of the grantor from their family and friends. They may also prevent the grantor from communicating with others or limit their access to important documents and information.
If you notice that the grantor is no longer allowed to communicate freely with their loved ones or attend social events, this could be a sign of POA abuse.
3. Changes in Medical Treatment
POA abuse may also involve changes in the grantor’s medical treatment that do not align with their wishes.
If the agent is responsible for the principal’s care, they may neglect their duties by failing to provide proper medical attention, medication, or adequate living conditions.
If you notice that the grantor is receiving the medical care they do not want or is being denied the medical care they need, this could be a sign of medical abuse.
4. Changes to Legal Documents
An agent abusing their power may try to change legal documents, such as wills, trusts, or powers of attorney, to benefit themselves or exclude other beneficiaries.
It is generally legal for an agent with a power of attorney to change someone’s will, but only under specific circumstances and with the person’s informed consent.
For example, if the person who granted the power of attorney is incapacitated and unable to make decisions for themselves, the agent may be authorized to make changes to the person’s will in their best interests.
However, if the agent uses their power of attorney to change the person’s will for their own benefit or without the person’s knowledge or consent, it may be considered power of attorney abuse, which is illegal.
Example of Power of Attorney Abuse
I had a client named Alice who granted her daughter, Sarah, power of attorney when she became too ill to manage her affairs.
Sarah was tasked with managing Alice’s finances and making decisions on her behalf.
After Alice passed away, it was discovered that Sarah had changed her mother’s will to leave a larger portion of the estate to herself and a smaller portion to her siblings. This was in contrast to the original will, which divided the money evenly between all the children.
Alice’s other children were shocked and upset by the revelation and believed that Sarah had taken advantage of her position as power of attorney to enrich herself.
They contested the will and ultimately succeeded in upholding the original distribution plan.
This story highlights the importance of transparency and ethical behavior when acting as an agent with power of attorney. Any changes made to a person’s will should be done with their informed consent and in their best interests, not for personal gain.
Steps to Take if You Suspect POA Abuse
If you suspect that POA abuse is occurring, taking action as soon as possible is vital. Here are some steps you can take:
1. Gather Evidence
Collect evidence supporting your suspicions, such as bank statements, receipts, or other financial documents. Keep a record of any conversations or interactions with the agent, including dates and times.
2. Contact an Attorney
Consult with an attorney who specializes in elder law or estate planning. They can advise you on your legal options and help you take the necessary steps to protect yourself or your loved one.
3. Contact Law Enforcement
Contact law enforcement immediately if you believe the POA abuse is criminal. They can investigate the matter and potentially bring criminal charges against the agent.
Some examples of criminal behavior related to power of attorney abuse include:
- Theft or embezzlement of funds: The agent may use a power of attorney to transfer or withdraw funds from the principal’s bank accounts, investment portfolios, or other assets without their consent or knowledge. This could include transferring funds to their accounts or using them for personal expenses.
- Fraud or forgery: The agent may forge the principal’s signature on legal documents, such as contracts or wills, or make false representations to obtain financial gain or other benefits. This could include selling the principal’s property or assets without their knowledge or consent.
4. Report to Adult Protective Services
If the principal is an elderly or vulnerable adult, you can report the abuse to Adult Protective Services (APS). APS is a state agency that investigates reports of abuse, neglect, and exploitation of vulnerable adults.
Reporting power of attorney abuse to Adult Protective Services (APS) can help in several ways:
- APS can investigate the allegations of abuse and gather evidence to determine whether the agent has violated any laws or regulations related to the use of power of attorney. This can help to hold the agent accountable for their actions and protect the principal from further harm.
- APS can provide support and advocacy to the principal by connecting them with social services, healthcare providers, or legal resources. This can help the principal to regain control over their affairs and protect their rights and interests.
- APS can work with law enforcement and other agencies to ensure that the agent is held accountable for any criminal behavior, such as theft, fraud, or coercion. This can deter other agents from engaging in similar abuse and protect other vulnerable adults from harm.
5. Seek an Order From The Court
You can also seek a court order to revoke the POA or appoint a new agent if you believe the current agent is not acting in the principal’s best interests. A court can also order the agent to return any misappropriated funds or assets.
6. Revoke the Power of Attorney
If you have the legal authority, revoke the power of attorney agreement. This can help prevent further abuse from occurring.
How To Revoke a Power of Attorney
Here are the steps to revoke a power of attorney:
1. Draft a Revocation Document
You can create a revocation document that explicitly revokes the power of attorney. The document should include your name, the name of the agent, the date of the power of attorney, and a clear statement that you are revoking the power of attorney. You should sign and date the document.
2. Deliver The Revocation Document to The Agent
You should deliver a copy of the revocation document to the agent in person or by certified mail. You should also keep a copy of the document for your records.
3. Notify Third Parties
You should notify any third parties, such as banks, investment companies, or healthcare providers, who may have relied on the power of attorney that it has been revoked. You can provide them with a copy of the revocation document and request that they no longer recognize the agent’s authority.
4. File The Revocation Document
You may need to file the revocation document with the same court or agency that authorized the power of attorney. This will depend on the laws of your state and the specific requirements for revoking a power of attorney.
Is Abuse of a Power of Attorney a Criminal Act?
Abuse of a power of attorney can be considered a criminal act. If the person with power of attorney illegally uses their authority, such as forging documents or stealing money or property from the person they are representing, it can be considered a criminal act.
Can an Agent Pay Themselves for the Work Done Under a Power of Attorney?
In general, an agent under a power of attorney is entitled to receive reasonable compensation for their services, as long as this is allowed by the terms of the power of attorney document and state law.
It’s important for the agent to be transparent about any compensation they receive and to ensure that it is reasonable and not excessive. They should keep careful records of the time they spend on their duties and any expenses they incur and be prepared to justify any payments they receive.
If there is any suspicion that the agent is abusing their authority and paying themselves excessively or inappropriately, this can be challenged by the principal or by other interested parties.
What To Do if You Suspect a Sibling of Power of Attorney Abuse
Siblings often fight over the use and misuse of a power of attorney. The most common disagreements related to the use of a power of attorney involve the following:
- Who should be named as the person with power of attorney?
- How decisions should be made.
- Financial management.
- Medical care decision.
These disagreements can lead to arguments, strained relationships, and even legal battles.
An Example of a Sibling Abusing a Power of Attorney
I can give you an example from my practice. Two siblings, Alice and John, were named as co-power of attorney for their elderly mother. Over time, Alice noticed that John was mismanaging their mother’s finances, using her money for his own expenses.
Alice tried to confront John about this, but he refused to listen to her concerns.
Eventually, Alice hired an attorney and began the process of challenging John’s power of attorney. This led to a bitter legal battle between the two siblings, with John accusing Alcie of being manipulative and overstepping her bounds.
The situation became so contentious that the family was eventually torn apart, with other siblings taking sides and relationships being irreparably damaged.
Ultimately, the court found that John had abused his power of attorney and was removed from the role. However, the damage to the family had already been done, and it took years for them to rebuild their relationships.
Q: Can I prevent POA abuse from happening?
A: While it’s not always possible to prevent POA abuse, there are steps you can take to reduce the risk, such as carefully selecting your agent, establishing checks and balances, and monitoring your accounts and assets regularly.
Q: How can I choose a trustworthy agent?
A: When selecting an agent, choose someone reliable, honest, and has your best interests at heart. Consider their financial skills, experience, and willingness to communicate and work with others.
Q: What should I do if I am named as an agent in a POA?
A: If you are named as an agent in a POA, it’s essential to understand your duties and responsibilities. You have a fiduciary duty to act in the principal’s best interests and manage their affairs accordingly. Keep detailed records of all transactions and decisions, and communicate regularly with the principal and other interested parties.
If you suspect that POA abuse has occurred, it’s essential to take action as soon as possible to protect your and the principal’s interests. By following the steps outlined in this article, you can gather evidence, report the abuse to the appropriate authorities, and seek legal remedies if necessary.
Remember, prevention is the best defense against POA abuse. Choose your agent carefully, establish checks and balances, and regularly monitor your accounts and assets to reduce the risk of abuse.