1230 Columbia Street, Suite 540, San Diego, California 92101
FREE CONSULTATION 866-200-4415 (619) 344-0977 FREE CONSULTATION 866-200-4415 (619) 344-0977

If you suspect that a friend or family member has breached his or her fiduciary duties or abused an elder under the Power of Attorney Law contact our law firm to discuss recovery of assets, including potential double damages and attorney’s fees and costs.

Warning to Agents Under Power of Attorney: A General Durable Power of Attorney is not an invitation to misappropriate or embezzle funds. You are assuming a Fiduciary Duty. You may be prosecuted for Fraud and/or Embezzlement. If the principal is over the age of 65,  you may also be prosecuted for Elder Financial Abuse.


California General Durable Power of Attorney Form.pdf

[Select the link above for the approved Statutory Form of California General Durable Power of Attorney0


Read the Important Warning to Would be Agents under a POA.pdf

Cal Prob Code _ 4128

Notice to Person Accepting the Appointment as Attorney–in–Fact. —

By acting or agreeing to act as the agent (attorney-in-fact) under this power of attorney you assume the fiduciary and other legal responsibilities of an agent. These responsibilities include:

  1. The legal duty to act solely in the interest of the principal and to avoid conflicts of interest.
  2. The legal duty to keep the principal’s property separate and distinct from any other property owned or controlled by you.

You may not transfer the principal’s property to yourself without full and adequate consideration or accept a gift of the principal’s property unless this power of attorney specifically authorizes you to transfer property to yourself or accept a gift of the principal’s property. If you transfer the principal’s property to yourself without specific authorization in the power of attorney, you may be prosecuted for fraud and/or embezzlement. If the principal is 65 years of age or older at the time that the property is transferred to you without authority, you may also be prosecuted for elder abuse under Penal Code Section 368. In addition to criminal prosecution, you may also be sued in civil court.


§ 4231. Standard of care

  • Except as provided in subdivisions (b) and (c) subdivision (b), in dealing with property of the principal, an attorney-in-fact shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by
  • If an attorney—in—fact is not compensated, the attorney—in—fact is not liable for a loss to the principal’s property unless the loss results from the attorney—in—fact’s bad faith, intentional wrongdoing, or gross negligence.
  • (b) An attorney-in-fact who has special skills or expertise or was designated as an attorney-in-fact on the basis of representations of special skills or expertise shall observe the standard of care that would be observed by others with similar skills or

Added Stats 1994 ch 307 § 16 (SB 1907).

Amended Stats 2010 ch 48 § 1 (SB 1038), effective January 1, 2011.


Breach of Fiduciary Duty Under Power of Attorney Law (Including Elder Financial Abuse Remedies)

Cal Prob Code § 4231.5

 

§ 4231.5. Breach of duty; Equitable excusal; Remedies for wrongful taking of property in bad faith, or by use of undue influence in bad faith or through commission of elder or dependent adult financial abuse; Attorney’s fees and costs

 

  • If the attorney-in-fact breaches a duty pursuant to this division, the attorney-in-fact is chargeable with any of the following, as appropriate under the circumstances:
    • Any loss or depreciation in value of the principal’s property resulting from the breach of duty, with interest.
    • Any profit made by the attorney-in-fact through the breach of duty, with
    • Any profit that would have accrued to the principal if the loss of profit is the result of the breach of
  • If the attorney-in-fact has acted reasonably and in good faith under the circumstances as known to the attorney-in-fact, the court, in its discretion, may excuse the attorney-in-fact in whole or in part from liability under subdivision (a) if it would be equitable to do
  • If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property that belongs to a principal under a power of attorney, or has taken, concealed, or disposed of property that belongs to a principal under a power of attorney by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action to recover the property or for surcharge. In addition, except as otherwise required by law, including Section 5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs to the prevailing party. The remedies provided in this section shall be in addition to any other remedies available in law to the principal or any successor in interest of the principal.

 


Defending the Agent under Power of Attorney – Legal Defenses

  • Standard of Care:

    • If an attorney—in—fact is not compensated, the attorney—in—fact is not liable for a loss to the principal’s property unless the loss results from the attorney—in—fact’s bad faith, intentional wrongdoing, or gross negligence.

  • Equitable Excusal:

    • If the attorney-in-fact has acted reasonably and in good faith under the circumstances as known to the attorney-in-fact, the court, in its discretion, may excuse the attorney-in-fact in whole or in part from liability under subdivision (a) if it would be equitable to do so.

X

Contact Form

We will respond to your inquiry in a timely fashion. Thank you.

Quick Contact Form