Power Of Attorney Abuse Explained

Power of attorney is a popular legal mechanism that allows people and business entities to grant their peers the ability to conduct different acts (legal, business, or similar) on their behalf. 

As this power comes with great responsibility, every now and then some persons abuse it for personal gain. Any form of power of attorney negligence can end up causing significant financial and emotional harm, which is why you need to be familiar with the main signs of abuse and take proper action.

However, you most likely have a lot of questions on your mind such as what is an abuse of power of attorney, what are the repercussions, and most importantly, how do you prove power of attorney abuse?

In this article, we’ll clarify all these questions, and by the end, you’ll know enough about the power of attorney misconduct to be able to spot it in the wild and take proper action. 

What Is Power Of Attorney?

A power of attorney is a legal agreement that provides a person (usually a lawyer) the authority to legally act on behalf of other individuals in various financial, personal, and other matters. It usually comes in the form of a written document. The party that enacts the power of attorney is referred to as the principal, while the person granted this authority is generally referred to as an attorney-in-fact or an agent. 

There are plenty of uses for a power of attorney, yet in most cases, people use it to designate a trustworthy person to manage their affairs if at any point they become incapacitated due to an illness, injury, or old age.

For the power of attorney to be valid in the eyes of the court, the principal needs to be of sound mind while signing this document. If this person is incapacitated before assigning an attorney-in-fact, they’ll unfortunately have to rely on conservatorship, instead.

Conservatorship is also a type of legal agreement, similar to a power of attorney, with one notable difference - a conservator is appointed by the court after the person has already become incapacitated. 

Because a power of attorney document provides the opportunity to choose a person whom you can trust to manage your affairs, it’s one of the most powerful estate planning tools out there. In fact, many people draft a power of attorney simply to avoid the chance of relying on court-appointed individuals in the future.

What Is Power Of Attorney Abuse?

Even though there are different forms of power of attorney and they may all have specific guidelines, their common element is the authorization of one person to take actions on behalf of another. 

Misconduct or power of attorney abuse occurs when the terms of the underlying document aren’t followed or are purposefully misused. Since the agent is required to act in the principal’s best interest, if they use their authority for their benefit, they are breaching the duty - which can (depending on the severity of the misconduct) be violating federal or state laws.

The most common form of misconduct is financial abuse, which happens when the agent misuses assets they were given control over.

An agent may use the assets or the money to reimburse themselves for their expenses or provide compensation for their services, yet, if any unreasonable payments occur, it’s a clear sign of financial abuse. To put it differently, a violation of the power of attorney occurs when the attorney-in-fact uses the assets of the principal for any other purpose than carrying out their duties as an agent. 

There are other forms of abuse, including purposefully making bad medical decisions, as well as physical or verbal abuse, and neglect. 

If you suspect a person is misusing their authority, you need to act quickly. If you’re the principal and you’re mentally competent, you can revoke the power of attorney. It’s a bit tougher when the principal is incapacitated or no longer mentally competent, in which case, it’s necessary to file a claim to revoke the power of attorney. 

What Are The Repercussions Of Power Of Attorney Abuse?

Depending on the gravity of the abuse of authority, the punishment can vary. For simple transgressions, the court will simply revoke the power of attorney. If the acts conducted by the agent have a criminal element they can result in fines or even jail time.

For instance, if the agent failed to provide appropriate medications to the principal, the court may order the agent to pay the damages to compensate the principal for any harm suffered as a result.

Similarly, if the attorney-in-fact misappropriated the principal’s funds, they may have to return all the funds they took and compensate the principal for any attorney fees. 

In case of gross misconduct, the court may even order the agent to pay punitive damages to the principal. 

How Do You Prove Power Of Attorney Abuse?

Finding evidence of power of attorney abuse isn’t that easy, and it all starts with looking at the most common signs:

• Principal’s health and financial situation has declined
• The Principal’s home lacks the daily essentials
• Principal’s bills are not paid
• Valuables are missing from the principal’s home

These signs may not necessarily be solid proof of abuse, yet they are red flags that may require further investigation.

So how do you prove power of attorney abuse?

It strictly depends on the type of abuse that transpired. For instance, if an agent withheld medical care from the principal, then a medical expert will be necessary to demonstrate how the principal’s health declined as a result of the abuse.

In cases of financial abuse, finding proof may be easier and bank statements might clearly show how the agent misappropriated the funds.

How Can An Attorney Prove Power Of Attorney Abuse?

If you suspect a loved one is a victim of abuse, you need to contact an attorney right away. A legal professional can investigate the case on your behalf, and assist you in finding clear evidence of abuse or misconduct. If there is evidence, an attorney can help you explore all the available legal options including litigation. 

Since these matters are very serious, you need someone with experience.

Here at the Law Offices of Mary E. King, we handle estate planning documentation daily and we know exactly which steps are necessary to prove misconduct or abuse of power of attorney. After all, we’ve spent decades helping others pursue justice on behalf of their loved ones, and we’re positive we can do the same for you.

Schedule a consultation by filling out our contact form or dialing 941-906-7585 and we’ll get started on your case ASAP.

Note: 

The information in this blog post is for reference only and not legal advice. As such, you should not make legal decisions based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.