Power of attorney abuse occurs where an agent (the person with power of attorney) breaches his or her fiduciary duty to the principal (the person who grants the power of attorney) or otherwise acts against their best interest. Abuse by agents in many cases is considered a form of financial elder abuse, and it can have serious financial consequences for its victims. Given the enormous power that many agents are capable of exercising, California law takes power of attorney abuse very seriously and provides for a number of civil and criminal penalties for those who engage in it. A California power of attorney abuse lawyer can help you pursue these remedies if you or someone you care about has been the victim of power of attorney abuse.
Civil Penalties
California Probate Code
The California Probate Code provides for civil penalties against agents for breaching fiduciary duties to their principals. If an agent breaches a fiduciary duty, they are chargeable for:
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- Any loss or depreciation in value of the principal’s property resulting from the breach of duty, with interest
- Any profit made by the agent through the breach of duty, with interest
- Any profit that would have accrued to the principal if the loss of profit is the result of the breach of duty
If the court finds that the agent has wrongfully taken, concealed, or disposed of the principal’s property in bad faith, the agent will be liable for twice the value of the property recovered by an action to recover the property.
California Elder Abuse and Dependent Adult Civil Protection Act
If the power of attorney abuse was found to constitute elder abuse under the California Elder Abuse and Dependent Adult Civil Protection Act, the agent may be liable for additional damages.
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The Act states that financial elder abuse occurs when a person or entity does any of the following:
- Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for wrongful use or with intent to defraud, or both
- Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for wrongful use or with intent to defraud, or both
- Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence
Where a plaintiff can prove through clear and convincing evidence that an agent has engaged in any of the behaviors above, the plaintiff is retitled to recover attorneys’ fees and costs in addition to all other damages available by law, including damages of twice the amount taken from the senior. The Elder Abuse and Dependent Adult Civil Protection Act is one of the most common legal tools to fight financial elder abuse. For more information about lawsuits under the act, please contact a California power of attorney abuse lawyer.
Criminal Penalties
Larceny
Many types of power of attorney abuse involve theft, which could occur where the agent steals the principal’s assets or commingles the principal’s assets with their own assets. Misappropriation of the principal’s assets through larceny is punishable as a criminal matter in California. Petty theft (up to $950) is a misdemeanor and is punishable by a fine of up to $1,000 or six months in county jail or both. Grand theft (over $950) is a felony and is punishable by a fine of up to $10,000 or three years in jail or both.
Embezzlement
Embezzlement occurs when the perpetrator fraudulently appropriates property that has been entrusted to him or her, as could occur when an agent steals or otherwise misappropriates the principal’s assets. Embezzlement in California is charged similarly to larceny, except that embezzlement of an automobile or firearm is considered grand theft. Please contact a California power of attorney abuse lawyer for more information about pursuing embezzlement claims.
Forgery
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Forgery occurs when the perpetrator signs the name of another person with the intent to defraud. This could arise in the power of attorney abuse context, for example, where an agent attempts to exceed the scope of their authority by forging the principal’s name on a check or altering their will or other estate planning documents. Like larceny and embezzlement, forgery can be charged either as a misdemeanor or felony and is punishable by a fine of up to $10,000 or three years in jail or both.
Fraud Against Elders
If power of attorney abuse causes financial harm to an elderly person or any other adult whose physical or mental disabilities restrict their ability to protect their rights, it may rise to the criminal level. The California Penal Code’s Crimes Against Elders provisions provide remedies for power of attorney abuse against elders and dependent adults.
A person who is not a caregiver who commits theft, embezzlement, forgery, fraud, or identity theft and who knows or reasonably should know that the victim is an elder or dependent adult is punishable as follows:
- If the value of the property is more than $950, by a fine of up to $10,000 or imprisonment for up to four years or both a fine and imprisonment
- If the value of the property is $950 or less, by a fine of up to $1,000 or imprisonment for up to one year or both a fine and imprisonment
The same penalties apply to caregivers who commit such crimes, except that the victim or the victim’s personal representative is not required to show that the caretaker “knows or reasonably should know” that the victim is an elder or dependent adult.
Seek Compensation for Power of Attorney Abuse With Help From a California Power of Attorney Abuse Lawyer
There are several legal remedies available to the victims of power of attorney abuse, both in civil law and criminal law. The best way to maximize your chances of recovery is to seek the counsel of an attorney who has experience handling these kinds of claims. For more information, please contact a California power of attorney abuse lawyer at the Evans Law Firm, Inc., by using our online contact form or calling 415-441-8669 or toll-free at 1-888-50EVANS (888-503-8267).
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