California Power of Attorney | It’s Not a License to Steal
- August 2, 2017 - Elder Financial Abuse,
Hackard Law is a California trust, estate and elder financial abuse litigation law firm. Our lawyers respond to about 1000 new prospective client calls per year. Sometimes we think that we’ve seen and heard about everything. And, of course we haven’t. But I do want to talk about something that I’ve seen and heard a lot about. That is the abuse or outright fraud associated with a California durable power of attorney.
So let’s start with what it is – A durable power of attorney is a document signed by a principal to authorize another person to act for him or her with regard to financial and legal affairs. The power can be revoked at any time as long as the maker is competent.
For decades Flying magazine has had a column titled “I Learned about Flying From That.” The column shares a pilot’s lasting impressions from close calls and near disasters. I bring this up because after practicing law for over 40 years I can say that “I Learned about Practicing Law from That.” Of course, when it comes to stories, I need to respect attorney-client confidentiality and there may be some literary license. Still I’ve got so many stories of close calls and near disasters in the use and abuse of powers of attorney. So let’s look at common scenarios.
Mom or Dad is an elder. I’ve seen cases where the victim is as young as 65 and as old at 100. Paying bills, coordinating doctor’s appointments and dealing with the everyday requirements of living is getting tougher. A child, often living in the home, or a caretaker or other trusted person is asked or offers to assist the senior. Now let me say that this type of assistance is common and most often generated by love and caring. But remember we’re talking about the close calls, near disasters and disasters here. In other words – the exceptions to how families and close friends normally treat elders.
We receive an email inquiry or a telephone call that briefly describes an estate or elder financial abuse problem. The story starts with a description of an infirm or vulnerable parent dependent on others for assistance. The assistant has been given or has secured a power of attorney allowing him or her to stand in the place of the elder. This is all fine except when it isn’t. And what are the common stories when it isn’t?
The power of attorney (POA) holder transfers bank accounts, securities, cars or real estate to himself or herself. The POA hides the assets of the elder either before the elder passes away or after the elder has passed. Records show that the POA was using the elder’s ATM card and credit card as personal lines of credit or their own piggy bank. Expensive travel, home improvements, cars for children or whatever else you can imagine are paid for from the elder’s money. The elder is for the most part completely unaware of the abuse or consents to the abuse because of fear of being put in a rest home or being abandoned.
A California power of attorney is not a license to steal, and the conduct indicated is theft. A POA as a fiduciary must exercise the duty of loyalty (Probate Code Section 4232), the duty of care and skill (Probate Code Section 4231), and the duty the duty to keep the principal’s property separate and identified (Probate Code Section 4233). There are other duties but for the most part the wrongdoing that we see involves careless or intentional acts that removes the principal’s real or personal property from his or her ownership and control.
It is said that for every wrong, there should be a remedy. It is a nice goal, but there are times in power of attorney litigation that the remedy is elusive. The wrongdoer may have taken property and squandered it or otherwise transferred it even beyond the reach of a judgment lien or writ of execution. That said, we regularly work to right the wrongs against elders that have been committed by holders of their powers of attorney.
If you would like to talk to us about how your or your relative has been wronged by the holder of a power of attorney call us at Hackard Law: (916) 313-3030. We serve clients in most of California’s major urban areas including Los Angeles, Sacramento, Alameda County, and San Francisco. We’ll look forward to hearing from you. Thank you.