Suspecting that someone you trusted is abusing their power of attorney can be the cause of immense emotional anguish. However, power of attorney abuse does happen, and it is important to know how to handle the situation if you believe that someone is behaving unethically toward you or a loved one.
What Is Power of Attorney?
Power of attorney is a legal arrangement that provides a designated Agent to make legal decisions on behalf of another person (the Principal). Sometimes, for example, a particularly busy individual will give power of attorney to their financial planner so that they can sell and buy stocks on their behalf. In other cases, an Agent may be granted power of attorney if an older adult becomes incapacitated in some way.
What Is Power of Attorney Abuse?
Power of attorney abuse occurs when the Agent is not acting in the best interest of the Principal. In many power of attorney abuse cases, the Agent is taking advantage of an older Principal for the Agent’s own financial gain.
Power of attorney abuse can come in the following forms:
- Breach of fiduciary duty
Contesting Power of Attorney
If a family believes that an Agent is taking the Principal’s property for themselves, the family may seek to invalidate the Agent’s power of attorney. Sometimes these cases can be resolved between parties through negotiation or mediation. However, if these methods fail, it may be necessary to go to court.
Proving Power of Attorney Abuse
Agents who have power of attorney are legally obligated to act in and for the best interest of the Principal. For this reason, financial records can usually make it clear when power of attorney abuse has happened because they will demonstrate that the Agent has gained something at the expense of the Principal. As soon as the Agent behaves in a manner that results in their own personal gain rather than that of the Principal, this constitutes a breach of the Agent’s fiduciary duty.
There are several signs that an Agent may be abusing their power of attorney, such as:
- A sudden change in the Principal’s financial position
- An Agent who refuses to share information or records with the Principal
- An Agent who demands that the Principal sign unexplained or unfamiliar documents
- Identity theft, financial exploitation, or fraud
If you notice any of these signs, it is essential that you contact an experienced lawyer as soon as possible. They will be able to investigate the matter and determine whether there is serious cause for concern. If an estate litigation attorney suspects that power of attorney abuse is occurring, they can send the Agent legal communications that may be enough to bring the abuse to a halt.
Will a Person Who Commits Power of Attorney Abuse Go to Jail?
Power of attorney abuse is considered a civil matter rather than a criminal one. For this reason, those who commit power of attorney abuse generally will not face any criminal charges and will therefore not go to jail.
Mediation, Negotiation, and Civil Court Proceedings
If court proceedings begin in power of attorney abuse cases, they will take place in a civil court. However, most estate litigation attorneys attempt to handle power of attorney abuse cases via mediation or negotiated settlements. This is because they can be resolved more quickly and at a much lower financial cost outside of court. Sometimes, once an Agent is confronted with evidence of power of attorney abuse, they will willingly return financial assets to avoid being taken to court.
If the Agent denies that they have committed power of attorney abuse, civil court proceedings become more likely. These proceedings can be time-consuming and expensive. However, experienced estate litigation attorneys will generally recommend taking a case to civil court if they expect that the assets recovered will exceed the court costs and attorney fees.
Contact an Experienced Estate Litigation Attorney Today
If you believe that you or a loved one may be the victim of power of attorney abuse, the Dallas estate litigation lawyers of Staubus and Randall are here to help. Our experienced legal team has helped many clients across the state of Texas reach favorable outcomes in matters involving power of attorney abuse, fraud, and exploitation. We are ready to do the same for you.
We will fight for your best interests at every step of the process. Contact us for a case evaluation by calling 214-691-3411 today. We look forward to helping you through this difficult time.