Abuse of a Power of Attorney for an Incapacitated Family Member

By Larissa Bodniowycz, J.D.

Abuse of a Power of Attorney for an Incapacitated Family Member

By Larissa Bodniowycz, J.D.

Most people who hold a power of attorney for another person take their job very seriously and act in the best interests of that person. Unfortunately, occasionally unscrupulous people abuse these powers. If you are worried for an incapacitated family member who is getting abused by their agent-in-fact, you may be able to stop the abuse or, at least, ensure punishment for their misconduct.

Woman holding the hand of an elderly woman in a wheelchair

Power of Attorney Duties

To assess whether a power of attorney is being abused, you first need to understand what it is and what duties it requires. It's a legal document that allows a person, called the principal, to appoint someone to act on their behalf, called the agent. The agent is sometimes also called the power of attorney. The agent steps into the principal's shoes and can take almost any action the principal could take, such as withdrawing money from bank accounts, opening credit cards, and transferring money.

The agent's broad powers are balanced out by a duty to act on behalf of the principal. They must act in a trustworthy manner and in good faith. The agent must make decisions in the best interests of the principal.

Abuse of Power of Attorney

Abuse of power of attorney comes in different forms. To evaluate whether the agent is abusing their status, start by asking these questions:

  • Is the agent acting within the scope of the abilities granted to them?
  • Is the agent acting in the principal's best interests?

If the agent is taking actions that are beyond what has been granted to them or not acting in the principal's best interests, there may be abuse.

For example, if an agent is withdrawing funds from the principal's account and transferring them to their own account for no reason, there is likely abuse. In contrast, if an agent sells the principal's home because the principal, while competent, told the agent they wanted to sell their home this year, that is not abuse—even if you, as the family member, disagree with the decision to sell.

Unfortunately, abuse often occurs when the principal is incapacitated and unable to recognize what is happening or speak up on their own behalf. In this situation, the principal needs their family members to step in and help.

Removal of Power of Attorney or Other Remedies

If you learn that an agent is abusing the power of attorney they hold for one of your family members, you can seek to have the agent removed. When a principal is incapacitated, this requires a court order. The process for obtaining the court order depends on your state. In all states, you first need to present the judge with evidence of the abuse. A civil personal attorney in your state can help you obtain the court order.

In addition to removal, there are civil and criminal remedies for this type of abuse. You do not need to choose between them. It is possible to recover in civil court and criminal court for the same conduct.

You can bring a civil lawsuit against the abuser to try to recover some of the financial losses the principal suffered and impose financial penalties on the abusive agent. There are a variety of civil claims that you might bring on behalf of your incapacitated family member, including breach of fiduciary duty, conversion, fraud, and undue influence. If the incapacitated principal is also elderly, there may be additional claims with enhanced penalties for elder abuse or a similar claim.

In virtually every case of abuse, the agent commits one or more crimes. Like civil cases, there are enhanced criminal penalties if the abused principal was elderly. Family members that know of the abuse should bring it to the attention of the prosecutor, sometimes called the district attorney, in the county where the abuse occurred. The prosecutor decides whether to press criminal charges.

Acting Quickly

If you suspect the agent for an incapacitated family member is abusing their power of attorney, act immediately to stop them from causing further harm. An attorney licensed in your state can help you evaluate the decision and tell you what your options are.

Drafting this important document so that it clearly defines the agent's authority can help prevent abuse by the agent. Make sure the document is clear and specific, so the agent knows where the line of their fiduciary duties lay. Further, the principal may want to share the document with their financial institutions so they will also know the extent of the authority they've been given.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.