A power of attorney (POA) is a legal document that allows you to appoint someone (called an agent or attorney-in-fact) to act on your behalf in certain matters, such as financial, legal, or medical decisions.
A POA can be a useful tool to help you manage your affairs, especially if you become incapacitated or unable to act for yourself.
However, a POA can also be abused or forged by someone who wants to take advantage of you or your assets.
In this article, I will explain what a fake power of attorney is, how to spot one, and what to do if you encounter one.
What is a Fake Power of Attorney?
A fake power of attorney is a document that looks like a valid POA, but is not legally binding or authorized by you.
Someone who wants to gain access to your money, property, or personal information, or by someone who wants to impersonate you or make decisions for you without your consent may create a fake POA.
A fake POA may have one or more of the following characteristics:
- It is not signed by you or witnessed by two competent adults who are not beneficiaries of the POA.
- It is not dated or has an incorrect date.
- It has altered or forged signatures, names, addresses, or other information.
- It grants powers that are not allowed by law or that are inconsistent with your wishes.
- It does not comply with the requirements or formalities of your state law.
How to Spot a Fake Power of Attorney?
If someone who claims to be your agent or attorney-in-fact presents with a POA you, you should always verify its validity and authenticity before accepting it or acting on it.
Here are some steps you can take to spot a fake POA.
- Compare the POA with the original copy that you have or that is registered with the court or a government agency. Look for any discrepancies or alterations in the document.
- Contact the person who supposedly granted the POA and ask them if they authorized it and if they are aware of its contents and scope. If the person is incapacitated or unavailable, contact their family members, friends, or other trusted people who may know about their situation and wishes.
- Check the credentials and identity of the person who claims to be your agent or attorney-in-fact. Ask for their full name, address, phone number, and proof of identification. If possible, meet them in person and verify their signature on the POA.
- Consult with a lawyer who specializes in elder law, estate planning, or POA matters. They can help you review the POA and advise you on your rights and options.
What is Considered Misuse of Power of Attorney?
Even if a POA is valid and authorized by you, it can still be misused by your agent or attorney-in-fact.
Misuse of power of attorney occurs when the agent acts outside the scope of their authority, does not act in your best interests, or abuses their position for their own benefit.
Some examples of misuse of power of attorney are:
- Using your money or assets for their personal expenses, debts, or investments without your consent or knowledge.
- Selling, transferring, or encumbering your property without your consent or knowledge.
- Making decisions that are contrary to your wishes, values, or preferences.
- Failing to keep accurate records of their actions and transactions on your behalf.
- Failing to communicate with you or inform you of important matters affecting your affairs.
What is the Penalty for Abuse of Power of Attorney?
If you suspect that your agent or attorney-in-fact is abusing their power of attorney, you can take legal action against them.
Depending on the nature and extent of the abuse, they may face civil and criminal penalties.
Civil penalties may include:
- Revoking or terminating the POA
- Suing them for breach of fiduciary duty, fraud, conversion, negligence, or other causes of action
- Seeking damages for any losses or injuries caused by their abuse
- Seeking an injunction to prevent them from further abusing their power
- Seeking an accounting of their actions and transactions on your behalf
Criminal penalties may include:
- Prosecuting them for theft, embezzlement, exploitation, forgery, identity theft, elder abuse, or other crimes
- Seeking restitution for any losses or injuries caused by their abuse
- Seeking fines and/or imprisonment
Who Can Override a Power of Attorney?
The person who granted the power of attorney (the principal) can always override it as long as they are mentally competent and capable of making their own decisions.
The principal can revoke or terminate the POA at any time by notifying the agent and any third parties who rely on it.
The principal can also modify or amend the POA by executing a new one that reflects their current wishes.
If the principal is incapacitated or unable to override the POA themselves, other parties may be able to intervene and challenge it in court.
These parties may include:
- The principal’s spouse, children, parents, siblings, or other relatives
- The principal’s friends, neighbors, or caregivers
- The principal’s doctors, lawyers, or other professionals
- The principal’s guardian, conservator, or trustee
- A government agency or a court-appointed representative
To override a POA, these parties must show that the POA is invalid, fraudulent, or abusive, and that it is not in the principal’s best interests.
The court may then revoke or modify the POA, appoint a new agent or attorney-in-fact, or take other measures to protect the principal and their affairs.
A power of attorney is a powerful and useful legal tool that can help you manage your affairs and protect your interests.
However, it can also be abused or forged by someone who wants to take advantage of you or your assets.
Therefore, it is important to know how to spot a fake power of attorney and what to do if you encounter one.
If you have any questions or concerns about your power of attorney or the actions of your agent or attorney-in-fact, you should consult with a lawyer who can advise you on your rights and options.