Is there a way to challenge a Power of Attorney if it is beign misused?

04/04/2009 - Power of Attorney - State: CA #15883

Full Question:

Is there a way to fight a power of attorney if you believe it was done to gain access to an elderly family members money?

Answer:

A power of attorney is a legal instrument that individuals create and sign that gives someone else the authority to make certain decisions and act for the signer. The person who has these powers is called an "agent" or "attorney-in-fact." The signer is the "principal." The principal must have mental capacity to make the power of attorney at the time of signing. As a principal, if the principal's decisions conflict with those of the agent, the principal's decision will govern, assuming that the agent confers with the principal prior to taking an action. If an agent has acted on the principal's behalf and acted within the scope of authority granted by the power of attorney, then the principal may be obligated by the terms and conditions of his actions. The power of attorney is not a substitute for a will. Upon the principal's death, either the will or the state's law of intestacy will govern the distribution of the estate.

The person designated to be the agent assumes certain responsibilities. The agent is obligated to act in the principal's best interest. The agent must always follow the principal's directions. Agents are "fiduciaries," which means that the agent must act with the highest degree of good faith in behalf of their principals. The agent must keep his money separate from the principal's; keep detailed records concerning all transactions he engages in on the principal's behalf; not stand to profit by any transaction where the agent represents the principal's interests; and not make a gift or otherwise transfer any of the principal's money, personal property, or real estate to himself unless the power of attorney explicitly states he can do so.

Various remedies may be available if a fiduciary duty was breached. Common actions for an abuse of a power of attorney, among others, include a petition for an accounting, claim of breach of fiduciary duty, theft, conversion, or a fraud charge.

According to California State Welfare and Institutions Code, Section 15610.30, financial abuse is “a situation in which a person, including but not limited to, one who has care or custody of or who stands in a position of trust, of an elder or dependent adult, takes, secretes, or appropriates their money or property, to any wrongful use, or with the intent to defraud.” Financial abuse also includes the illegal or improper use of an elder or dependent adult’s financial resources. To report suspected elder abuse or financial exploitation, you may call the California State Attorney General’s toll-free hotline at: 1-(888) 436-3600 You will be connected to your county’s Adult Protective Services agency.



Please see the information at the following links:

http://definitions.uslegal.com/p/power-of-attorney/
http://definitions.uslegal.com/f/fiduciary-duty/
http://definitions.uslegal.com/b/breach-of-fiduciary-duty/
http://lawdigest.uslegal.com/estate-planning/power-of-attorney-overview/
http://definitions.uslegal.com/a/accounting/
http://definitions.uslegal.com/c/constructive-trust/
http://definitions.uslegal.com/u/unjust-enrichment/
http://definitions.uslegal.com/s/self-dealing/

Please see the forms at the following links:

http://www.uslegalforms.com/us/US-00760.htm
http://www.uslegalforms.com/us/US-01252BG.htm
http://www.uslegalforms.com/us/US-L0107.htm
http://www.uslegalforms.com/us/US-11C-0-3-3.htm

Please see the following information for further discussion:

http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/CM/ContentDisplay.cfm&contentid=49953

Please see the information at the following links:

http://www.dhss.missouri.gov/MOSAFE/MOSAFEResourceManual.pdf
http://www.elder-abuse-information.com/abuse/abuse_financial.htm

04/04/2009 - Category: Power of Attorney - State: CA #15883

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