Abuse of power of attorney may occur at any time, so it’s crucial to identify any signs of abuse to protect the person’s interests.
A Power of Attorney is a legal document where the donor authorizes the attorney to act on their behalf regarding legal and financial matters.
Those with Power of Attorney (POA) must act in the individual’s best interests.
Why would I need a Power of Attorney?
A Power of Attorney lets a trusted person make decisions on your behalf in emergencies or during your absence.
It’s valuable for planning various situations, like travel or declining health, for both individuals and business owners.
However, abuse of power of attorney may occur.
While a springing Power of Attorney activates when you’re incapacitated, a Durable Power of Attorney works upon signing and persists even after incapacity, making it more vulnerable to abuse.
What are examples of Power of Attorney abuse?
Abuse of power of attorney often involves financial misconduct, where the agent misuses money or assets they control.
While reasonable payments and expense reimbursement are normal, unreasonable ones may be considered abuse.
If the agent spends or sells assets for personal gain instead of their duties, it may breach their duty and violate laws on elder abuse, exploitation, embezzlement, forgery, fraud, or theft. Abuse can also manifest as harmful medical decisions or physical, neglectful, or verbal mistreatment.
How to identify Power of Attorney abuse?
Detecting abuse, especially financial abuse, can be challenging without clear signs like physical injuries.
Unexplained lavish living by the agent or selling assets may raise suspicions but not necessarily indicate abuse. It’s wise to consult a lawyer if you have concerns, as each case is unique.
If you uncover evidence of abuse, you can involve law enforcement or file a court petition, but legal advice is crucial to ensure the right approach.
Taking action without guidance may lead to the agent using limited resources to hire an attorney for their defense.
What should I do if I suspect Power of Attorney abuse?
Addressing Power of Attorney abuse depends on the type of abuse. If it’s your own Power of Attorney, consult an attorney for help.
In cases of physical abuse or neglect, contact law enforcement promptly. If the victim is 60 or older, they may be eligible for free legal assistance through programs like Eldercare Locator.
If you suspect abuse by someone else’s Power of Attorney agent:
- Report physical abuse or neglect to law enforcement with evidence if possible.
- For less obvious financial abuse, consult an attorney before contacting authorities.
- Contact state or local adult protective service agencies for investigation.
- Consider creating a Power of Attorney to ensure future decision-making, or start with an Advance Directive if necessary.
Estate planning with a chosen Power of Attorney agent is preferable to a court-ordered conservatorship when decision-making capacity declines.
What is the Penalty for Abuse of Power of Attorney?
A lawsuit may require the agent to repay funds with interest, and they can face prosecution for fraud, embezzlement, or theft, possibly leading to fines or imprisonment.