Power of attorney abuse and sibling conflicts can be emotional and complex. Here’s our guide to power of attorney problems, contests, disputes, and abuse.
What is power of attorney?
Power of attorney is a legal contract that gives a person, the Agent, the power to make legal decisions on the behalf of somebody else, the Principal. For example, a busy adult may give their financial planner a power of attorney to make financial decisions for them, including buying and selling stocks. Frequently, a power of attorney is given to a trusted family member or family friend. So, when abuse occurs, it often comes with additional anguish.
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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.
Power of attorney abuse can include:
- Fraud
- Forgery
- Theft
- Misappropriation
- Self-dealing
- Breach of Fiduciary Duty
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
How do I prove power of attorney abuse?
It’s often clear that power of attorney abuse has occurred, because financial records will show that the Agent profited directly by taking advantage of the Principal. Why? An Agent is not supposed to directly gain anything, when acting with power of attorney. California law dictates that that the Agent is only to act in and for the best interest of the Principal. The moment the Agent acts in a way that results in their own personal gain instead of the Principal’s it’s time to investigate whether they have committed a breach of their fiduciary duty.
Sibling Conflicts and Power of Attorney Abuse
Sibling conflicts are a very common landscape for power of attorney abuse. It’s very common and sensible, that a Principal would give their child power of attorney over certain matters, often financial matters. 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 of the power or “favor” Principal is showing Responsible Child it will only serve to further heighten Irresponsible Child’s distrust.
Will a sibling who commits power of attorney abuse go to jail?
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.
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.
How do I report power of attorney abuse?
If you suspect power of attorney abuse, contact a probate litigation attorney immediately. Like at RMO, LLP, most experienced probate litigation attorneys will offer a free consultation to help answer your questions. For a free consultation, call us anytime at: (424) 320-9444
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How much does it cost to contest power of attorney?
The cost of contesting a power of attorney can vary greatly, but what what is the alternative – allowing the continued abuse of your loved one? At RMO, we pride ourselves on looking for cost-effective solutions that can be secured efficiently. One strategy is pursuing ex parte relief from the court to suspend the abuser’s power of attorney. Another is to push the case toward an early settlement conference or mediation, or possibly even a negotiated settlement. If resolved via settlement, the process can be quite fast and cost-effective. Frequently, once the abuse is discovered, the abusive Agent may return financial assets willingly and immediately — in order to avoid civil court. 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.
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.
Frequently Asked Questions
If you suspect power of attorney abuse, start by notifying the court that appointed or accepted the power of attorney by filing a petition to cancel or revoke it. You should also contact law enforcement if you believe fraud or theft has occurred, providing any documentation or evidence of misconduct. In many jurisdictions, you may also alert adult protective services or elder abuse agencies for additional support. It’s wise to gather key evidence—bank statements, communications, witness statements—before reporting the abuse.
Once abuse is reported, the court may hold a hearing to examine the allegations and determine whether to revoke the power of attorney. The court might appoint a guardian, conservator, or alternate agent to protect the principal’s interests in the meantime. The judge can also order restitution, remove the abusive agent, and impose sanctions if wrongdoing is proven. Additionally, civil or criminal charges may follow if fraud, theft, or breach of fiduciary duty is established.
Power of attorney abuse can take many forms, including:
• Misusing funds by transferring money or property from the principal’s accounts for the agent’s personal benefit
• Unduly influencing the principal to change their estate plans or beneficiary designations
• Failing to pay the principal’s bills or maintain property, resulting in negligence or damage
• Making unauthorized gifts, investments, or transactions that conflict with the principal’s best interests
Each case will depend on the legal authority granted in the power of attorney document and the agent’s fiduciary duties.
To contest a power of attorney, an interested party must file a petition in the appropriate court (often probate or guardianship court) asking the court to revoke or void the authority. Grounds for contest include lack of capacity, undue influence, fraud, or that the principal’s signature was forged. The contesting party must present evidence—medical records, expert testimony, communications—that supports the challenge. If the court agrees, it may cancel the power of attorney or limit its scope.
Once a contest is filed, the court typically schedules hearings where both sides present evidence, cross-examine witnesses, and argue legal points. The court may order interim relief—such as appointing a guardian or conservator temporarily or suspending the contested power of attorney. If the judge finds that the contest is valid, the power of attorney may be revoked, modified, or rescinded. In some instances, the court may also award damages, restitution, or order the agent to pay costs if misconduct is proven.