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The majority of individuals who have been appointed as a power of attorney for another person take their responsibilities seriously and operate in the best interests of the person who has appointed them. Unfortunately, unscrupulous individuals take advantage of their positions on occasion. If you are concerned about a disabled family member who is being mistreated by their agent-in-fact, you may be able to prevent the abuse or, at the very least, ensure that the agent-in-fact is held accountable for their actions.
Power of Attorney Responsibilities
To determine if a power of attorney is being misused, you must first understand what a power of attorney is and what obligations it entails. It is a legal instrument that enables a person, referred to as the principal, to appoint another person, referred to as the agent, to act on their behalf. The agent is sometimes referred to as the power of attorney in certain cases. The agent assumes the role of the principle and has the authority to do almost any activity that the principal would be able to perform, such as withdrawing money from bank accounts, establishing credit cards, and transferring money.
The extensive powers of the agent are counterbalanced by the need to act on the principal’s behalf. They must conduct themselves in a trustworthy and ethical way. The agent is responsible for making choices that are in the best interests of the principle.
Abuse of the Attorney-Authority General’s
Abuse of power of attorney manifests itself in a variety of ways. To determine whether or not the agent is misusing their position, begin by asking the following questions:
Is the agent operating within the extent of the powers that have been given to him or her?
In what ways is the agent working in the best interests of the principal?
In cases when the agent goes above and beyond the authority given to them or does not operate in the principal’s best interests, there may be abuse.
It is probable that there has been misuse if, for example, an agent is taking money from the principal’s account and transferring them to their own account without any justification. When the principal’s house is sold because they, although competent, have informed the agent that they want to sell their property this year, this is not considered abuse—even if you, as the family member, disagree with the choice to sell the home.
In many cases, abuse takes place while the principal is incompetent and unable to understand what is occurring or to intervene in his or her own defence. In this circumstance, the principal need the assistance of their family members to intervene and assist them.
Taking Away the Power of Attorney or Taking Other Actions
If you discover that an agent is misusing the power of attorney they have for one of your family members, you may file a complaint with the court to have the agent removed from the situation. An incapacitation of a principal necessitates the issuance of a court order. The procedure for getting a court order varies depending on where you live. It is mandatory in all states to first provide the court with proof of the alleged abuse. A civil personal attorney in your state may be able to assist you in obtaining the court order you need.
Additionally, there are civil and criminal remedies available for this kind of abuse in addition to removal. You are not required to make a choice amongst them. It is possible to recoup in both civil court and criminal court for the same act under certain circumstances.
In order to recoup part of the financial damages the principal has incurred, you may file a civil action against the abusive agent. You can also seek financial penalties against the abusive agent. On behalf of your disabled family member, you may be able to file a number of civil claims, such as claims for breach of fiduciary duty (including conversion), fraud, and undue influence (among others). As a result of the disabled principal’s age, it is possible that further claims for elder abuse or a similar claim may be filed, which will result in increased fines.
In almost every instance of abuse, the agent is found to have committed one or more felonies. If the victimised principal was above the age of sixty-five, the criminal penalties are increased, just as they are in civil instances. Family members who are aware of the abuse should bring it to the notice of the prosecutor, who is often referred to as the district attorney, in the county in which the abuse took place. The prosecutor makes the decision on whether or not to file criminal charges.
Taking Action as Soon as Possible
If you have reason to believe that the agent for a disabled family member is misusing their power of attorney, take quick action to prevent additional damage from occurring. An attorney who is licenced to practise in your state can assist you in evaluating your choices and advising you on the best course of action.
Drafting this essential document in such a way that it clearly specifies the agent’s power may aid in preventing misuse by the agent in this situation. Make certain that the document is clear and precise, so that the agent understands where the boundary between their fiduciary responsibilities and their own obligations lies. The principle may also wish to share the paper with their financial institutions so that they are aware of the scope of the power that has been granted to them.