What can be done if power of attorney impropriety or fraud is suspected?

When selecting a person that will carry out the wishes outlined in your power of attorney, it is important to choose wisely. There are no qualification guidelines to follow when choosing this agent. However, finding a trusted person is key when selecting someone to manage your affairs, especially at a time when you may not be able to do so.  

Unfortunately, sometimes the agent doesn’t follow your expressed wishes as they are supposed to. Maybe this happens because too many mistakes are made or outright fraud is committed. Knowing what an agent cannot do with a power of attorney and learning that there are remedies if impropriety or fraud is suspected will help keep your power of attorney from being misused.

What is an agent prohibited from doing with a power of attorney? 

An agent has to understand that a power of attorney is a great responsibility that cannot be handled carelessly or fraudulently. The agent can be sued for damages if they are found not to be compliant with your wishes, especially if there has been a fiduciary duty breach. Here are the restrictions on how an agent can manage a power of attorney:

  • The agent cannot do anything that is not specifically authorized in the power of attorney.
  • The agent cannot act in their own best interests. 
  • The agent cannot grant the power of attorney to a third party.

Revoking a power of attorney

If you are still mentally able, you can revoke a power of attorney at any time, for any reason. So, if you have reason to believe that the agent may not or cannot carry out your wishes, you can proceed with the revocation of your power of attorney. 

However, you must make sure that all banks and institutions that transacted business using the power of attorney are notified. This is important because you don’t want the agent to be able to continue with transactions once the power of attorney is revoked. Also, you must notify the agent in writing that you are revoking the power of attorney.

Challenging the power of attorney

What happens when a durable power of attorney is misused during a time when you may be mentally incapacitated? Family members and friends, with the help of an estate litigation attorney, can challenge the power of attorney and ask the courts to revoke it on your behalf. And, if there were damages stemming from the misuse, they can sue the agent for recompense.

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