If you are suspecting that someone is financially abusing your loved one through a power of attorney, your first instinct is to lear how to contest the power of attorney, in order to minimize the damage and to have the property returned to your loved one.
If you are suspecting power of attorney abuse:
Abuses of powers of attorney can be financially and emotionally devastating to a person’s estate and their heirs and beneficiaries. If you are alleging power of attorney abuse, your goals are to
- contest the power of attorney
- have the power of attorney agent return the money and property
- have the court revoke, set aside or cancel out the power of attorney
- punish the agent in a criminal proceeding
- find other ways of assisting your loved one
If your loved one is suffering from power of attorney abuse, it can mean serious financial consequences for their well-being and diminishes your future inheritance. Power of attorney abuse occurs frequently in connection with elder care or the care of a person who is physically disabled or mentally incapacitated.
If you are looking into how to contest a power of attorney, you are likely to need representation from an attorney who has experience with power of attorney abuse litigation, settlements and mediation. We at the Law Offices of Albert Goodwin are here for you. You can send us an email at [email protected] or call us at 212-233-1233.
What is considered power of attorney abuse
There are plenty of ways in which a person can abuse a power of attorney. Here are some examples:
- Opening joint bank accounts and naming the power of attorney Agent as a beneficiary
- Purchasing life insurance policies and naming the Agent as a beneficiary
- changing existing life insurance account beneficiaries
- Purchasing real estate with the principal’s money and transferring title of real estate for the benefit of the Agent
- Unauthorized gifting to self
- Unauthorized gifting to individuals and charities
- Theft of property
- Unauthorized use of credit cards
- Establishing credit under the principal’s name
A person perpetrating power of attorney abuse can leave a person’s estate and their heirs without any assets or inheritance. Power of attorney abuse such as the conduct described above typically involves one or more of the following potentially criminal conduct:
- Identity theft
What can I do if I suspect power of attorney abuse?
Ask your loved one to revoke the power of attorney
The simples thing to do would be to explain to your loved one that they are possibly being defrauded, and ask them to revoke the power of attorney in writing (hopefully with a copy to you). You may or may not choose to follow up and make sure that the person suspected of abusing the power of attorney is no longer in any power of authority over any of your loved one’s assets.
Ask the power of attorney agent to return the money or property
This may or may not work, but you can always just ask the power of attorney agent to return the money or property. It could be that their plan was to only abuse the power of attorney if they could get away with it. Now that they are discovered, they may decide to cut their losses and not have to deal with a civil lawsuit or even criminal prosecution, and they might just return the money or property in question.
Bring a lawsuit to contest the power of attorney
The maker or their potential heirs can contest the power of attorney in court by suing the representative directly on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to the estate and beneficiaries. These matters are complex, time-consuming and most people require the assistance of an experienced New York litigation attorney to help resolve matters for them in court.
Although your loved one can revoke the power of attorney that and can sue the power of attorney agent to get the money back, they are often too old and frail and don’t have the will power or sometimes even the mental capacity to bring a lawsuit. They also feel bad for the person who took the money from them, thinking that they don’t want them to get into any kind of trouble with the law.
The best way to contest a power of attorney might be to place a guardianship over your loved one
You will not be able to contest the power of attorney on your own, as you don’t have what we call the legal standing. You cannot sue on behalf of your loved one. And they are not likely to sue on their own, because it’s a difficult process and the person abusing the power of attorney is someone they care about. If you want to contest the power of attorney, the way to do that is through obtaining a guardianship over your loved one. Once you are a guardian, you can bring a lawsuit against the person abusing the power of attorney on grounds that a fiduciary duty was broken, tortuous interference or other causes of action to get the embezzled funds or property returned to the loved one, and ultimately to benefit the estate and beneficiaries.
There are some downsides to the guardianship proceeding, the most common downside being that your loved one can resent you for bringing a proceeding which compromises their independence. These matters are complex, time-consuming and most people require the assistance of an experienced New York litigation attorney to help resolve matters for them in court.
Is abusing a power of attorney criminal, can I get the police involved and can a person go to jail for it?
Power of attorney abuse can involve state and federal crimes of embezzlement, theft, identity theft, fraud or forgery, but it is unlikely that the power of attorney agent will face jail time, as the victim is unlikely to press charges against them and the police tends to view power of attorney abuse as a civil matter. So the only way you can contest a power of attorney is likely to be in civil court, a criminal proceeding would not be the way to go.
Can I report the abuse to adult protective services?
Reporting power of attorney abuse to the adult protective services is not a way to contest a power of attorney. It likely to not yield a result, as those government agencies typically view this issue as a civil matter. Your best opportunity to resolve the situation is to retainer the services of an attorney who has experience in these kind of matters. However, if other types of abuse are present, then you do want to report the abuse to adult protective services.
How can I prove power of attorney abuse
In order to contest a power of attorney, you would need to prove power of attorney abuse. You can prove power of attorney abuse by looking at the financial statements and property records of the person who made the power of attorney. If power of attorney abuse took place, then you will see transfers of money or property to the power of attorney principal or unexplained cash withdrawals. You can ask your loved one to show those documents to you or to give you access to those documents. If that is not possible, then your attorney would know how to get those documents.
A power of attorney has a lot of potential for abuse
If your loved one gave someone a power of attorney, it may make sense for you to look closely into the arrangement and for possible ways of how to contest the power of attorney. Perhaps ask for some financial records just to be on the safe side. You can never be too careful when it comes to power of attorney, due to the potential for abuse. A power of attorney gives a person the authority to make legal and financial decisions for someone else regarding such matters as
- bank accounts, including withdrawals and transfers
- the purchase and sale of real estate
- management of assets
- stock and bond transactions
- retirement plans
- buying and selling assets
By creating a power of attorney and giving someone such important powers, there is a potential for fraud, self-interest and embezzlement by a the power of attorney agent, especially where large sums of money and substantial assets are involved and readily accessible. A situation where large sums of money and substantial assets are involved and readily accessible can create a temptation that is hard to resist for some people.
A power of attorney is in effect until
- The person who made it dies
- It expires (if it has an expiration date)
- It’s revoked by the principal, who can revoke it by giving written notice to the power of attorney agent
- It is successfully contested and is revoked by the court
How much does it cost to hire a lawyer to contest a power of attorney
Attorneys generally charge by the hour. In our firm, we charge $400 per hour and require a retainer deposit of $4,000 to work on a case. No one likes to spend money on lawyers, but if the alternative is your relative continuing to suffer power of attorney abuse and your future inheritance to keep getting diminished, or having power of attorney abuse accusations being undefended, it seems like an easy choice to make.
Where can I find an attorney near me who knows how to contest a power of attorney?
We at the Law Offices of Albert Goodwin are here for you. If you are looking for an attorney who knows how to contest a power of attorney, get in touch with our firm. We have offices in Brooklyn, NY, Manhattan and Queens. You can send us an email at [email protected] or call us at 212-233-1233.