As the first baby boomers are now reaching retirement age, we are seeing an increase in the numbers of powers of attorney given to a relative or close family friend. Under the law of most states, the person who holds that power of attorney has a fiduciary duty to the person who granted the power. Most folks holding a power of attorney perform their duties selflessly. Unfortunately, some people abuse the trust given them.
A fiduciary duty is the highest standard of care recognized by the law. A person holding such a duty can never use the power of attorney for his or her own personal interest or gain. It’s not just holders of power of attorney that have a fiduciary duty. Lawyers owe a fiduciary duty to clients as do executors to heirs of an estate.
When the person granting the power of attorney is frail or incapacitated, some holders of the power breach their fiduciary duty and use the money or property entrusted to them for their own gain. This also happens after death when the executor of an estate diverts assets. Surprisingly these events often happens with “trusted” family members.
Some family members view a power of attorney as a license to steal. Others justify their actions by convincing themselves that they are entitled to an early inheritance. Still others convince themselves that they are entitled to “payment” for their services as holder of the power. While a family member can be paid for caring for an elderly relative, it becomes a breach of fiduciary duty if they decide to simply pay themselves without permission and informed consent.
If you or a loved one is the victim of a power of attorney fraud, forged will or other type of estate fraud, seek help immediately. Assets can dissipate quickly. (We know of one case where an elderly man was hospitalized for just a couple of weeks. During that time his nephew, who had a power of attorney to pay household bills, wiped out his uncle’s savings in just a few days and invested the money in a mobile home park.) The quicker you act, the easier it is to freeze assets before they are gone for good.
The probate and estate fraud lawyers at Mahany & Ertl defend the rights of the rightful heirs and beneficiaries against those who would abuse their fiduciary duties. For more information, contact attorney Brian Mahany at or by telephone at (direct). All inquiries kept in strict confidence.
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Posted by Brian Mahany, Esq.
Photo by Stuart Miles. Used with permission from freedigitalphotoes.net