Misusing POA Privilege’s

The Guide to Power of Attorney Abuse

When someone has the power of attorney to handle another person’s financial or healthcare matters, it is expected that they will act in the best interests of that person. Unfortunately, there are instances where individuals choose to manipulate or misuse the authority granted to them, jeopardizing the well-being of their loved ones. It is crucial to understand how to identify such misuse and take the necessary steps to protect the interests of those involved.

Is Power of Attorney a Fiduciary Duty?

When someone agrees to serve as a power of attorney or agent, they assume a fiduciary duty towards the person they are assisting. This means they must act in the individual’s best interests and maintain accurate records of their actions. Failure to fulfill this duty is considered a breach of fiduciary duty, which carries legal consequences.

Types of Misuse of Power of Attorney

There are two types of power of attorney: healthcare power of attorney and financial power of attorney. The former allows someone to make healthcare decisions on behalf of another person, including decisions related to life support, long-term care, and medical treatment when the individual is unable to make such decisions independently. The latter grants the agent the authority to handle financial matters and assets on behalf of the other party, such as accessing financial accounts, paying bills, and managing real estate or personal property. Unfortunately, both types of power of attorney can be susceptible to misuse.

If the person entrusted with the financial affairs of another party mismanages them, either through negligence or with the intention of personal gain, they are guilty of misusing the power of attorney privileges. In legal terms, this is considered a breach of fiduciary duty. Similarly, healthcare power of attorney can be abused, such as forcefully placing an elderly loved one into a nursing home for personal gain.

What Problems Could Arise from Abusing Power of Attorney

If you suspect someone is abusing their power of attorney, they may face both civil and criminal penalties. The guilty agent can be sued and held responsible for returning what they took, along with any additional interest. Moreover, they may face prosecution for various offenses, including fraud, embezzlement, exploitation, and theft, depending on the extent of their abuse.

If you are assuming the role of an agent in a power of attorney agreement, it is essential to understand the implications thoroughly. The potential penalties for abusing this power are severe and can result in substantial fines and criminal charges if you are accused of abuse.

How to Prevent Power of Attorney Abuse

The first step in safeguarding against power of attorney abuse is to choose your agent carefully. When appointing someone as your power of attorney, ensure that you trust them to act in your best interests and maintain accurate records. Additionally, they should be willing to make difficult decisions on your behalf, especially during challenging times.

If you suspect someone is abusing their power of attorney over a loved one, you may need to petition the court to obtain legal conservatorship of that person. This legal action will revoke the abuser’s authority and put an end to the abuse. However, this process can be challenging, as you may need to provide evidence of the abusive agent’s actions. Consulting with an estate planning or elder law attorney can be immensely helpful in navigating such situations. Additionally, reporting the abuse to your local adult protective services department is recommended.

Power of attorney is a valuable tool for assisting individuals who are unable to manage their financial or healthcare needs independently. However, it is essential to be aware of the potential for misuse. If you suspect your loved one is a victim of power of attorney abuse, it is crucial to seek immediate legal assistance. Our law firm specializes in addressing such issues and can help you petition the court for legal conservatorship, putting an end to the abuse and ensuring justice is served.

In addition, if you are in the process of preparing your estate planning documents, our experienced team can provide guidance on setting up power of attorney and selecting the right individual for this critical role. Call us now at 419.662.3100.