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.
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.
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:
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
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 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.
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.
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
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.
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.
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com