what is the punishment for violating a power of attorney

If you suspect that someone is abusing power of attorney, the guilty party faces civil and criminal penalties. The guilty agent can face a lawsuit and be forced to pay back what they took with interest. They can also face prosecution for fraud, embezzlement, exploitation, and theft, depending on what they endured due to their abuse.

Full Answer

What are the penalties for abuse of power of attorney?

What penalties can someone face for abusing their power of attorney authority? If an agent abuses the authority granted by a power of attorney, they may face both civil and criminal consequences. As for civil consequences, an agent can be sued for fraudulent conversion of the principal’s money and be forced to provide restitution to the principal.

What happens if a power of attorney is used fraudulently?

If an agent abuses the authority granted by a power of attorney, they may face both civil and criminal consequences. As for civil consequences, an agent can be sued for fraudulent conversion of the principal’s money and be forced to provide restitution to the principal. This means paying the principal back money with interest.

Can an agent abuse a power of attorney?

It's a power the agent can easily abuse, but he may face civil and criminal penalties for doing so. The agent can do almost anything the power of attorney authorizes him to do. That can include selling the principal's real estate, buying stocks with the principal's money, managing the principal's bank accounts or signing contracts.

What are the restrictions on a power of attorney's actions?

Another restriction on the agent's actions is that she has a fiduciary duty to her principal. When acting under the power of attorney, the agent must put the principal first: • She must make decisions with competence and good judgment.

What penalties can someone face for abusing their power of attorney authority?

If an agent abuses the authority granted by a power of attorney, they may face both civil and criminal consequences.

What is a power of attorney?

A durable power of attorney for finances is a document that allows another person to make decisions about your financial accounts if you are incapacitated. This document authorizes the agent who is typically a sibling, spouse, or child to act on behalf of the principal.

What to do if you are not legally competent to revoke a power of attorney?

If you are not legally competent to revoke the power of attorney that was previously granted to the abusive agent, a loved one can go to court to ask for legal conservatorship of the principal or ask to oversee the current agent’s actions moving forward.

What is a financial power of attorney?

Agents with a financial power of attorney have a fiduciary duty to make decisions with your best interest in mind. They have legal authority to access your financial information, including bank accounts, to pay your bills and make decisions about your finances and any real estate you own.

How much jail time does an elder abuser get in Arizona?

Arizona classifies certain types of elder abuse as a crime, meaning that you could face a Class 2 felony and five years of imprisonment if you are found guilty. Additionally, a power of attorney for finances in Arizona includes language that says if an agent misappropriates money, penalties can include damages up to three (3) ...

Can you put a power of attorney in Arizona?

You can also put together a health care power of attorney, which gives authority to an agent to have authority to make medical decisions for you, including your end of life care. It can give consent for procedures and surgeries, and can make the decision to cease end of life care, if so authorized. Arizona state law also recognizes a durable power of attorney for mental health care. This document allows the agent to place you in a psychiatric facility.

Can you revoke a power of attorney?

There are a number of legal remedies you can pursue in the face of power of attorney abuse in addition to pursuit of a civil claim for conversion of property. If you are legally competent, you can revoke the power of attorney and issue it in favor of a new agent.

What can a power of attorney do?

The agent can do almost anything the power of attorney authorizes him to do. That can include selling the principal's real estate, buying stocks with the principal's money, managing the principal's bank accounts or signing contracts. State and federal law may limit the agent's authority. For example, a regular power of attorney doesn't empower the agent to represent someone before the Internal Revenue Service. That requires an IRS-specific power-of-attorney form.

What happens if an agent abuses her trust?

The penalties for an agent who abuses her trust depend on state law and on how her case is handled, either by authorities or the principal. If the principal suspects a problem, he can take action against the agent. So can his children or spouse, and possibly others, such as the principal's caregiver.

How to reduce the risk of abuse?

One step to reduce the risk of abuse is for the principal to write the power narrowly. If, say, the principal only needs the agent to sell her vacation home, she shouldn't sign a power of attorney that gives him wider authority. A graduate of Oberlin College, Fraser Sherman began writing in 1981.

What is the restriction on an agent's actions?

Another restriction on the agent's actions is that she has a fiduciary duty to her principal. When acting under the power of attorney, the agent must put the principal first:

Can an attorney be a fiduciary?

An attorney in fact may fall far short of his fiduciary duty. An agent can use the power-of-attorney to sell the principal's house or transfer the title into his own name. A greedy agent can siphon money out of the principal's bank accounts. An agent who has heavy debts he can't pay off may do the same thing out of desperation.

Can an agent be sued for breach of duty?

The first step is to request a court order that the agent provide an accounting of her duties and her management of the principal's affairs. If the accounting shows the attorney has breached her duty to the principal, she can be sued. A successful lawsuit may be able to overturn and undo the agent's actions. An agent who has taken title to the principal's house, for instance, could be forced to return it. The principal or another interested party can also sue for damages.

Can a power of attorney be used to represent someone?

For example, a regular power of attorney doesn't empower the agent to represent someone before the Internal Revenue Service. That requires an IRS-specific power-of-attorney form.

How Can a Power of Attorney Be Abused?

There is a lot of potential for wrongdoing when someone is given authority in a power of attorney relationship. For example, some common abuses include:

What Are the Penalties If Someone Abused Their Power of Authority?

If the court finds that an agent has abused their authority in a power of attorney, they could be facing civil and criminal penalties. Under civil court, they can be sued and be forced to repay the principal back with interest. In criminal court, the agent can be prosecuted for fraud, exploitation, embezzlement, and theft by the state or federal government. This could potentially include imprisonment and/or fines.

What is the basis for challenging a power of attorney?

Thus, the focus on challenging the creation of a power of attorney should be based on lack of capacity, undue influence, or improper signing formalities. If a power of attorney has been abused by the agent, a basis may exist to sue the agent for the return of money, property assets, or for possible monetary damages.

Why is it frustrating to have a power of attorney?

Because many powers of attorney are so broad in scope, challenging the actions taken through the power of attorney may be frustrating when the face of the document seemingly allows almost any conduct including self-dealing and making gifts to themselves.

Can an attorney in fact modify a document?

An attorney-in-fact may not amend or modify any document or other disposition effective at the principal’s death unless expressly authorized by the power of attorney to do so.

What is power of attorney abuse?

Power of attorney abuse refers to a legal claim that the person granted power of attorney, the Agent, is not acting in the best interest of the other person, the Principal. Frequently, power of attorney abuse cases are intertwined with Financial Elder Abuse, wherein an Agent takes advantage of an older Principal, for the Agent’s own monetary gain.

How is power of attorney abuse resolved?

Plus, most power of attorney abuse situations are resolved through negotiated settlement or mediation, and a l court trial never even occurs. Why? Supervised by a probate litigation attorney, settlement proceedings are faster and less expensive than going to court.

Do I need a power of attorney abuse litigation attorney near me?

We recommend finding an experienced probate litigation attorney familiar with the county probate court in the county where the abuse is taking place. For example, if the Principal is being abused in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.

Can power of attorney be contested?

Yes, and it’s more common than you might think. Based on claims of abuse, we help clients contest power of attorney every day. The most common reasons families seek to invalidate powers of attorney are for abuse by the Agent of the Principal in taking the Principal’s properties for themselves. In many cases, these abuse issues can be resolved through negotiated settlement or mediation, without even having to go to court. Confused? Need help? We’re happy to simply answer your questions: (424) 320-9444

What happens when a principal gives power of attorney to a child?

However, if a conflict arises between the Principal’s children, then the power of attorney that one child holds often leads to even more, often highly emotional, conflicts. Ex., if Principal gives power of attorney to Responsible Child who has a strained relationship with Irresponsible Child and Irresponsible Child learns ...

What happens if an agent denies abuse?

If the Agent denies the abuse, and civil court is required, then the costs and time increase and can be substantial. However, if the case is going to civil court, the expectation is that the financial value of assets that will be recovered will exceed the attorney fees and costs.

Is power of attorney abuse a criminal matter?

Generally, no. Power of attorney abuse is a civil matter, and handled in civil court, not criminal court. In the vast majority of cases, issues are resolved without a criminal charge even being filed.

What is a power of attorney?

A power of attorney is a written document that gives an agent the legal authority to act for the principal who establishes the power of attorney. This designation is for financial purposes, such as opening a bank account, writing checks, implementing new investments and conducting financial transactions. A power of attorney can give someone the ...

Why do people need a power of attorney in hospitals?

In some situations, a person may suffer some type of health crisis and may choose to appoint a power of attorney while in a hospital because of the logistical difficulties of handling financial transactions in this situation . However, this is a prime time for predators who may take advantage of the opportunity and withdraw funds and close accounts.

What is legal authority?

This legal authority can be an important planning mechanism that allows someone to make financial decisions and conduct financial transactions in the event that the principal cannot do so for himself or herself whether temporarily or permanently.

What is a legal claim for a fraud?

In some cases, the legal claim may be that the agent lied about circumstances which caused him or her to take action or have the agent take action on his or her behalf that was adverse to his or her interests.

Can a power of attorney be revoked?

Individuals who believe that their power of attorney is being abused or who are concerned about a loved one may wish to discuss their case with a lawyer. A lawyer may be able to revoke the power of attorney so that no further damage is done. He or she may be able to demand the return of stolen assets or money and file a lawsuit that alleges the appropriate cause of action against the abuser.

Is elder abuse a felony?

Elder Abuse. Several states have laws related to elder abuse. In some cases, the state includes taking financial advantage of a vulnerable elder in the statute. These may be criminal or civil laws with varying degrees of penalties, sometimes resulting in the possibility of charging a felony against the abuser.

Can a power of attorney abuser transfer real estate?

A power of attorney abuser may transfer real estate to his or her own name, remove the principal’s belongings, use the power of attorney’s money for his or her own gain or take advantage of the position in other ways.

3 attorney answers

The penalties depend on what was stolen and the court has the power to surcharge the offending party and sanction them. Also if the attorney did this fraudulently, then the attorney could be reported to the Cal Bar. Get help now from a probate attorney. More

Gregory Paul Benton

A power of attorney is not effective once the principle (your Uncle) dies. I assume this was done during his lifetime. Only thing I can suggest, since it's been "years" is to turn him in to the District Attorney. Of course you'd have to be able to prove it was a forgery. More

Why is a sibling a power of attorney?

Here is one example: a sibling is chosen as a power of attorney to watch over an incapacitated parent’s financial matters. Another child alleges that the sibling is spending their parent’s savings on their personal debts or in a manner that doesn’t benefit the parent.

What is punitive damages?

Punitive Damages – As the name implies, punitive damages are meant to punish the adverse party. These damages are intended to act as a deterrent for would-be fraud or malice. These costs are in addition to any compensatory damages assessed. Damaged Career – In many professions, a damaged reputation can mean ruin.

What is Considered Breach of Fiduciary Duty?

When a party does not fulfill their required obligations, it is a breach of fiduciary duty and can result in a civil lawsuit. This can happen in the case of a power of attorney when it is determined that the agent’s actions were not within the principal’s best interest.

What happens if a fiduciary agent acts unlawfully?

If a civil case indicates that the agent of fiduciary duty acted unlawfully or irresponsibly with assets or in any way contrary to the interest of the principal, damages may be rewarded.

What is compensatory damages?

Compensatory Damages – After litigation, compensatory damages occur to offset any loss suffered by the principal or estate. Evidence of failure and financial records are required to determine amounts of compensatory damages. Punitive Damages – As the name implies, punitive damages are meant to punish the adverse party.

What documents are required to be kept under a power of attorney?

These records include receipts, copies of checks, tax forms, and all other documents that can be considered evidence of a transaction made under power of attorney .

What happens if a principal is not incapacitated?

Remember that if the principal is an elder and is not incapacitated, the agent must keep them informed of any issues that affect their interests. No secret profit or adverse claim may be made, and no property should be transferred to the agent from the principal unless specifically requested or indicated in the POA.