Power of attorney holders (also known as “agents”, “attorneys-in-fact”) have the ability to exercise a great deal of control over their principals, which includes all aspects of their lives including financial, medical, housing and care issues. In a power of attorney, an agent can make decisions for the principal as if they were making them themselves. This includes buying and selling real estate, running businesses, and filing lawsuits, among others. It is common for other parties to contest a power of attorneys when they suspect that the agent has committed power of attorney fraud. A Florida power of attorneys fraud attorney can help you if you suspect fraud in the form of power of attorney or financial elder abuse.
Agents’ duties
The agents are bound to a fiduciary obligation towards their principals, and the assets of their principals. In general, this means the agent must act with good faith in the best interests of the principal and avoid self-dealing. Agents are required to comply with the following duties under Florida law:
- Conflicts of interest are void when you act solely for the benefit of your principal.
- Avoid dealings in which the agent may have a stake.
- Separate the property of the principal from all other property
- Follow the instructions of your principal.
- If the principal becomes incapacitated, consult with his/her spouse, attorney, accountant and other family members.
- Keep detailed records for all transactions.
- Upon request, or as specified in the power-of-attorney, provide an accounting of all transactions.
- Upon termination of power of attorney, immediately deliver possession and control over the principal’s assets.
A breach of fiduciary duties may give rise to a contestation of the power of attorneys.
Power of Attorney Abuse Examples
The duties that agents are required to perform by law may not seem particularly burdensome, but the power granted to agents through a power of attorney is easily abused. Power of attorney abuse can occur in the following situations:
- The agent is stealing assets from the principal
- Agent uses principal’s assets to gain personal benefit
- The agent mixes his or her own assets with those of the principal
- Agent disobeys instructions given in power of attorney
- Agents make unnecessarily reckless or risky transactions
- Agent fails to maintain records of transactions
- The agent does not maintain the principal’s assets in an appropriate manner
- The agent has exceeded their authority by, for example, making gifts or changing the will of the principal.
- Agent transfers power of Attorney to another person
These breaches of fiduciary duties can have long-term and serious financial effects on the principals and their family. Contact a Florida attorney for power of attorneys fraud if you suspect abuse of the power.
Justifications for contesting power of attorney
Power of attorney isn’t set in stone. This is good news for anyone who suspects that abuse of power of attorneys is taking place. Concerned family members can contest the power of attorney granted to an agent on several grounds.
Errors of Execution
In Florida, establishing power of attorneys is easy. It is common for documents to be missing the required formalities. Power of attorney documents in Florida must, for example, contain specific language if they are to be durable. Documents granting power of attorney must be either notarized, or signed by at least two witnesses. The power of attorney can be rendered void if these errors are made.
Incapacity of the Principal
Only those with the legal capacity to enter into contracts can execute a power. The person must understand the decision they make and the power they grant. A power of attorneys may be null if it is signed while the principal has mental or physical incapacity.
Unfitness Agent
Agents, just as principals need to be able to execute a Power of Attorney, must also have the ability to act as attorneys in fact. Agents should also be “fit” to do the job. A caregiver without financial experience would not be able to manage a senior’s money. Never grant a caregiver a power of attorney. The agent’s incapacity may be used to challenge the power of attorneys if an agent loses the ability to act. The agent’s incapacity does not absolve them of their duty to the principal, or his successors.
Unfair Influence
A power of attorney that was obtained through undue pressure by an agent can be used to contest the power of attorney. It could happen, for instance, when the agent abuses their position of authority to force the principal into giving them power of attorneys. In Florida, the challenger will need to show that:
- The victim was vulnerable in some way (e.g. mental illness, old age, isolation, dependency etc.).
- The victim was influenced by someone who appeared to have authority
- Influencers exercise power over victims
- Inequitable results
You can gather evidence against a power of attorney fraud in Florida by hiring a lawyer.
Breach of Fiduciary Duties
A breach of fiduciary duties by an agent is, as discussed above a basis for contesting power of attorney. To prove a breach in fiduciary duties, it is best to demonstrate that the agent did not act according to the power of attorneys. If, for example, the power of attorney prevents the agent from investing in certain kinds of assets, but the agent invests anyway, that investment would likely be considered as a breach of fiduciary duties.
For help contesting a power of attorney, contact a Florida Power of Attorney fraud lawyer.
It is possible to contest a power. It is necessary to provide extensive documentation regarding the alleged abuse of fiduciary duties or other breaches and make a strong legal argument as to why the principal would benefit from a renovation of their power of attorney. You will have the best chance of winning a contest of a power-of-attorney if you hire an experienced lawyer. Contact a Florida attorney for power of attorneys fraud at Bonardi & Uzdavinis, LLP by filling out our online form or calling us on (813) 540-2019.
