Choosing a power of attorney is an important part of every estate plan. The person who is granted power of attorney has the ability to speak for an elderly person who has given them that right. This means in financial, medical and most legal matters.

Even if you are careful about who you choose to be your power of attorney you may have overestimated the ability of this person to act selflessly. So what can you do if you or an elderly loved one has had their power of attorney abused?

 

Fiduciary Duty

A person who is appointed and accepts the power of attorney from another person has some responsibilities under the law. Typically the person who is given the power of attorney, called the agent, must act as a fiduciary for the person granting the power, the principal.

A fiduciary has a legal responsibility to act under good faith and make decisions that are in the best interests of the person they are representing. This means that:

  • The agent must be honest with the principal and give them any critical information that could lead to decision making.
  • The agent can’t transfer any property or assets from the principal to themselves unless there is a statement in the agreement that allows for this to occur.
  • The agent can’t work against the principal in any way to gain a profit.
  • The agent can only gain monetary benefit from the arrangement if the principal agrees to this upon granting power of attorney.

 

Breach of Fiduciary Duty

Most legal cases involving abuse of power of attorney involve a breach of this duty. This means that the agent has somehow broken one of the above rules. Typically this means they were not acting in good faith and have made decisions that were contrary to the best interest of the elderly person they represent.  

 

Conversion

This is another way that an agent can defraud an elderly person. This is where they use assets that belong to the elderly person that they represent for their own benefit.

There are a few ways that this could happen.  First may be as simple as spending financial assets that are meant for their principal for their own gain.  Of course this would have to be contrary to the wishes of the person that they represent. Another way that conversion could occur is if they use property or other assets for their own benefit.  Living in an unoccupied house rent free is a good example.

 

Contact an Elder Law Attorney for Help

The first thing that you should do if  you believe that you or an elderly loved one is the victim of abuse of power of attorney is to contact an attorney from Stano Law Firm. Typically these cases must be brought in front of a court who can strip the person of their power of attorney and order them to pay back any losses that the principal may have had.