Blogs from April, 2011


What Authority Does a Power of Attorney Have?

A power of attorney is a document that transfers legal authority to another person. The person granting the power of attorney is called a principal who gives another, known as the attorney-in-fact, the written legal authority to make decisions on a specific, narrow, or broad range of topics.

The scope of a power of authority can cover the following:

  • An attorney-in-fact usually has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the power of attorney.
  • An attorney-in-fact may not amend or modify any document or other disposition effective at the principal’s death unless expressly authorized by the power of attorney to do so.
  • An attorney-in-fact may not change the named beneficiary on an insurance policy unless expressly authorized to do so by the power of attorney.

The law provides that the construction of a durable power of attorney is a matter of law. In construing a power of attorney, the court must look at the language of the instrument in order to ascertain its object and purpose. Powers of attorney are strictly construed and only the principal’s intent is considered when construing the power of attorney, not the agent’s intent.

How Can a Power of Attorney Be Abused?

There is a lot of potential for wrongdoing when someone is given authority in a power of attorney relationship. For example, some common abuses include:

  • Changing beneficiaries: Power of attorney holders can change beneficiary designations and account titles so the heirs are left with little to no inheritance.
  • Re-titling accounts and misappropriation of funds: A power of attorney can also be abused when dealing with life insurance, annuities, bank accounts, joint accounts or pay on death accounts.
  • Breach of fiduciary duty: A power of attorney can engage in transactions that do not represent the best interests of the principal, such as failing to provide medical care for the principal.

Whether it is through fraud, theft, improper transfers, self-dealing, improper gifting, or retitled accounts and beneficiaries, abusing one's fiduciary duty can be quite common nowadays.

What Are the Penalties If Someone Abused Their Power of Authority?

If the court finds that an agent has abused their authority in a power of attorney, they could be facing civil and criminal penalties. Under civil court, they can be sued and be forced to repay the principal back with interest. In criminal court, the agent can be prosecuted for fraud, exploitation, embezzlement, and theft by the state or federal government. This could potentially include imprisonment and/or fines.

What Can I Do If I Suspect Power of Attorney Abuse?

Because many powers of attorney are so broad in scope, challenging the actions taken through the power of attorney may be frustrating when the face of the document seemingly allows almost any conduct including self-dealing and making gifts to themselves.

Thus, the focus on challenging the creation of a power of attorney should be based on lack of capacity, undue influence, or improper signing formalities. If a power of attorney has been abused by the agent, a basis may exist to sue the agent for the return of money, property assets, or for possible monetary damages.

How Do You Prove Power of Attorney Abuse?

Proving Power of Attorney (POA) abuse involves gathering comprehensive evidence to support your suspicions. This might include financial records, bank statements, and any documents that show suspicious transactions or changes in the principal's estate. Photos or videos could also serve as evidence if physical abuse or neglect is suspected.

Medical documentation can be crucial, particularly letters from doctors stating the POA holder's incapacity. Moreover, instances of fraud, forgery, theft, misappropriation, self-dealing, or breach of fiduciary duty can all be indicators of POA abuse.

It's also possible to contest the validity of the POA itself. If you believe it was established under duress, undue influence, or when the principal lacked mental capacity, you can challenge it in court.

Working with an experienced power of attorney lawyer in Florida who can guide you through the process and ensure all relevant evidence is properly presented is essential for establishing a strong case. The laws governing POA abuse vary by jurisdiction, so getting legal advice tailored to your specific situation is critical.

Need Help Challenging a Power of Attorney?

If you are seeking legal representation and counsel for a case involving power of attorney abuse, contact our team at Adrian Philip Thomas, P.A. for guidance. We have exceptional experience resolving estate litigation matters in Florida and can advise you of your options.

Request your initial consultation with a qualified power of attorney lawyer in Florida at Adrian Philip Thomas, P.A.. Call (954) 764-7273.


Most Recent Posts from April, 2011