Power of attorney (POA) is a powerful legal tool designed to help loved ones manage finances or health care when someone becomes incapacitated or needs assistance. But what if a power of attorney is abused? This is, unfortunately, more common than many people assume and can cause substantial financial and physical harm to the person for whom they are acting. For their loved ones, power of attorney abuse can have long-term financial consequences, too, as it depletes the principal’s estate and, ultimately, the inheritance you are due to inherit. When that authority is misused, it can quickly lead to financial loss, emotional distress, and legal disputes.
“Power of attorney abuse doesn’t always start with a crime; it starts with trust. But when that trust is broken, the damage is often hidden until it’s too late,” said Nicholas D. Porrazzo, a Partner at Gokal Law Group who is an expert in trust and probate litigation and was a Super Lawyers Southern California Rising Star 2024. “In fact, this abuse doesn’t always look like fraud at first. Sometimes, it starts with a favor and then turns into a pattern of exploitation. That’s why vigilance and legal clarity are essential from the beginning,” he said.
What is Power of Attorney Abuse in California?
Understanding how power of attorney (POA) abuse occurs and what it looks like is the first step to protecting your loved ones. In California, it’s essential to recognize the warning signs and legal definitions that distinguish the rightful use of a POA from misconduct. Here’s everything you need to know about what constitutes abuse, how it happens, and what you can do if someone crosses the line.
What is the Abuse of a Power of Attorney?
Abuse of a POA occurs when the agent (the person granted power) acts outside the authority given or fails to act in the best interest of the principal (the person who created the POA). Generally, this also means that they misused or failed to follow the document that granted them this authority.
Power of attorney abuse in California can include theft, fraud, self-dealing, or simply neglecting the responsibilities outlined in the legal document. Even well-meaning agents can unknowingly commit abuse through careless or uninformed actions.
What Are Signs of Power of Attorney Abuse?
Identifying abuse early can prevent significant damage. Common red flags include:
- Unexplained withdrawals or transfers from the principal’s accounts
- Sudden changes in estate plans or asset titles
- The decline of the principal’s health beyond what is normal for their age and health circumstances
- Isolation of the principal from family members or trusted advisors
- The lack of daily essentials, such as food, toilet paper, and cleaning supplies
- Unpaid bills or missing funds despite sufficient resources
- The agent refusing to provide financial records or updates
- The principal’s mood or behavior suddenly changing for the worse
- The principal’s mail being diverted to another location
- Missing property from the principal’s home
It is important for family members to remain vigilant for these signs and more, especially when an elderly relative is reliant on one individual to manage their affairs.
What Are Examples of Power of Attorney Abuse?
Power of attorney abuse can take many forms, depending on the scope of the agent’s authority and the type of POA in place:
- Medical Power of Attorney Abuse: This type of abuse includes decisions that go against the principal’s wishes or best interests, such as denying necessary treatment.
- Abuse of Power of Attorney Before Death: This form of abuse can manifest as transferring assets or changing beneficiaries to benefit the agent while the principal is still alive.
- Power of Attorney Elder Abuse: This type of abuse occurs when the agent manipulates seniors through coercion or deceit to gain control of their finances. Financial elder abuse by a power of attorney is among the most common forms of POA abuse seniors face.
- Power of Attorney Misuse of Funds: This form of abuse occurs when the person with the power of attorney designation is using the principal’s money to pay the agent’s personal bills or make unauthorized purchases.
- Durable Power of Attorney Abuse: This abuse occurs when the person with the power of attorney designation continues to act after the principal has revoked authority or misused a POA that was meant to take effect only under specific conditions.
- Power of Attorney Financial Abuse: POA financial abuse occurs when an agent misuses their authority to gain access to the principal’s finances for their own gain, such as withdrawing money from bank accounts or using their credit cards.
- Estate and Probate-Related POA Abuse: Using POA authority to alter estate plans, redirect inheritance, or transfer property before death, leading to will contests, trust disputes, and other probate litigation after the principal passes.
What Happens if Someone Abuses a Power of Attorney?
When power of attorney abuse is uncovered, the consequences can be serious. The agent may face civil liability for any financial harm caused and may be removed from their role.
In some cases, they may be required to return stolen assets or pay damages. If the misconduct involves fraud, theft, or elder abuse, the agent may also face criminal charges.
What to Do if Power of Attorney is Abused
If you suspect POA abuse, it’s critical to act quickly. Contacting a lawyer who handles power of attorney abuse can help you:
- Gather evidence to prove that this abuse occurred
- Revoke the POA and remove the agent
- Freeze accounts or transactions to prevent further harm
- Initiate litigation to recover misused or stolen assets
- Seek a court-appointed conservator if the principal is incapacitated
Knowledgeable power of attorney abuse lawyers can help you assess your options and move swiftly to protect your loved one’s interests.
Can You Sue a Power of Attorney?
Yes. In California, if an agent abuses their power of attorney, they can be sued in civil court for breach of fiduciary duty, financial elder abuse, fraud, or other misconduct.
The principal, their family, or representative may file a lawsuit to recover misappropriated assets, demand an accounting of transactions, or seek damages for losses caused by the abuse. In some cases, legal action may also include a request to revoke the POA or appoint a conservator.
Suing a power of attorney is often necessary when informal efforts fail and the agent refuses to cooperate or repair the harm they’ve caused.
Related Article: How Gokal Law Group Helps Clients Succeed in Litigation
How to Stop Power of Attorney Abuse
To stop abuse, you may need to work with a power of attorney lawyer to file a petition or lawsuit with the probate court to:
- Revoke the agent’s authority
- Demand an accounting of transactions
- Request restitution or damages
In urgent cases, temporary restraining orders or emergency conservatorships may be necessary. California courts take allegations of financial elder abuse seriously, and a strong legal strategy can make all the difference.
What is the Penalty for the Abuse of a Power of Attorney?
The punishment for power of attorney abuse, ultimately, depends on the severity and nature of the alleged abuse. In some situations, the penalty might be as simple as the court revoking the power of attorney. However, in other situations, it could result in jail time, damages, and hefty fines – especially when the power of attorney abuse is determined to have been criminal in nature.
For example, if an attorney-in-fact committed POA abuse by neglecting to provide your loved one with their medications or other necessary treatment, they could be ordered to pay damages to compensate them for any harm or suffering as a result of this neglect.
Alternatively, if an agent misappropriated the principal’s assets for their personal gain, they could be forced to return the money, pay the other party’s legal fees, and possibly face punitive damages.
California Probate Code section 4231.5 details the circumstances that could cause an agent to have to pay damages for a breach of fiduciary duty, and California Probate Code Sections 4230 – 4238 provide a full list of duties.
If you believe someone is breaching their duties and abusing their position, it is crucial to consult with a lawyer about suing them for fiduciary misconduct.
Is the Abuse of Power of Attorney a Criminal Offense?
Yes. In California, power of attorney abuse can be a criminal offense, especially when it involves financial exploitation or other criminal acts. While some abuses may be handled as civil matters, certain actions like fraud, embezzlement, theft, and forgery can lead to criminal charges.
Can You Go to Jail for the Abuse of a Power of Attorney?
Yes. If an agent uses a power of attorney to commit theft, embezzlement, or other forms of financial elder abuse, they can face jail or prison time under California law.
Criminal prosecution may lead to misdemeanor or felony charges depending on the severity of the misconduct, the amount that was stolen, and the amount of harm caused. In addition to incarceration, the agent may be ordered to pay restitution to the victim or their estate.
Courts are especially strict when the abuse involves vulnerable adults or a breach of fiduciary duty.
What is the Statute of Limitations on Power of Attorney Abuse?
There is no specific statute of limitations that applies to power of attorney abuse. However, there are statute of limitations that apply to breach of fiduciary duty and elder financial exploitation claims.
In California, the statute of limitations for bringing a financial elder abuse claim is typically four years from the date the abuse was discovered or should have been discovered. Still, deadlines vary depending on the claim, so it’s important to consult with an attorney as soon as possible.
How to Report Power of Attorney Abuse
Power of attorney abuse can be reported to:
- Adult Protective Services (APS)
- The local police department
- The California Department of Justice
- Probate court, through a petition to investigate or suspend the agent
Documenting the abuse with the use of financial records, communications, and witness statements will help support your case.
How Do You Prove Power of Attorney Abuse?
Proving power of attorney abuse often requires a paper trail. Helpful evidence includes:
- The power of attorney document
- Medical documentation
- Bank and credit card statements
- Property transfers or title changes
- Communications between the principal and agent
- Witness testimony from caregivers, advisors, or family members
An experienced attorney can help obtain and present this evidence in court.
“When someone misuses power of attorney, it’s not just paperwork; it’s a betrayal of trust with real financial and emotional consequences,” said Porrazzo. “We help families take back control and hold wrongdoers accountable,” he added.
Contact Our Power of Attorney Abuse Attorneys Today
At Gokal Law Group, we help families hold agents accountable when power of attorney authority is misused. If you suspect POA abuse, financial elder abuse, or fiduciary misconduct, we’re here to protect your loved one’s rights and restore what’s been lost. Our team regularly assists with:
- Investigating and litigating POA abuse in probate court
- Recovering stolen or mismanaged estate assets
- Petitioning for conservatorships or fiduciary removal
- Pursuing civil claims for breach of fiduciary duty and financial elder abuse
Contact us today to schedule a confidential consultation and take the first step toward justice.
3 Responses
My father will be 97 this July ,my mother died in 2011 ,63 days after my mother s death,my only brother,took my fathers revocable trust,qiut claimed it to himself and made it irrevocable,,then my only brother died in 2018, 5 days after his death,his daughter, which is my niece,ran back to the same notery and put my fathers house in her name, their has been 8 or more quit claim deeds in the last 3 years, I am my fathers only remaining son, I started becoming aware of all this in January of 2022,,19 months after my niece took the house,she came back and made her brother tenents in common with my father, and took power of attorney over my father without my father knowing,my father told me last week that the me notery was never his attorney,and he didn’t do that, please help me
I in desperate need for an attorney to help me with this matter, I am presently on disability with a workans comp case approaching settlement in the very near future, My father finally told me the truth, I must do stop my niece and nephew,the have isolated my father from me,he still within his witts,but he has no formal education he’s from old Mexico, I need legal advice and assistance
Urgent Legal Assistance Needed: Elder Financial Abuse, Fraudulent Real Estate Transactions, Undue Influence, and Document Falsification (Low-Income Assistance Required – Family with Children)
I am writing to seek urgent legal assistance regarding my sister’s egregious actions concerning my father’s finances and property. I suspect she is committing elder financial abuse, breach of fiduciary duty, exercising undue influence, falsifying documents, and misusing her authority for personal gain. She has sold two of my father’s homes and is improperly using his assets, falsely claiming it’s for his care, while he is still alive.
Specifically, she has issued a fraudulent 5-day eviction notice for my home, which I have not officially received, and is attempting to sell the property. I also believe she has falsified signatures on documents, and the living trust is missing or inaccurate, with a new, inaccurate trust in place.
I am in need of low-income or low-fee legal assistance due to my financial situation, and I have children who would be significantly impacted by these events. I need immediate guidance on how to proceed, including:
* Halting the eviction process and preventing the sale of my home.
* Protecting my father’s remaining assets and financial well-being.
* Investigating the extent of the alleged misconduct, fraudulent sales, and document falsification.
* Determining the best legal course of action to stop these activities, invalidate fraudulent documents and transactions, and seek redress.
Please contact me at your earliest convenience to discuss this critical matter further. I can provide more detailed information and any relevant documentation you may require.