The Atlanta, Georgia, fiduciary and Estate Litigation lawyers have seen a striking increase in the exploitation of the elderly through powers of attorney. Make no mistake about it; abusing the fiduciary duty imposed under Georgia law for the holder of a power of attorney is tantamount to stealing. It is white-collar crime at its worst. Our Atlanta, Georgia breach of fiduciary duty lawyers have significant experience in rectifying the misuse and abuse of a power of attorney. Our Firm is also aggressive in recovery of the exploited funds.
A Georgia power of attorney gives someone else the legal capability and power to act on behalf of another without their presence. Oftentimes, powers of attorney entail taking over extremely important day-to-day affairs of another and usually involve legally taking over their finances. While powers of attorney can be an effective tool to assist elderly and other persons with diminished capacity and ability, they are easily used to exploit the elderly or other persons with diminished mental or physical capacity. What is more, power of attorney documents are easily obtainable and can be purchased in kits from office and legal supply stores or downloaded online, sometimes free.
In these troubled economic times, family members, friends, and other persons have been using powers of attorney for their own financial gain by taking advantage of the elderly through the use of these documents. If this abuse goes unchecked, the assets, and sources of income of an elderly or incapacitated person can be devastated. In fact, the damage done can be limitless and usually is permanent unless it is possible to recover the assets back from the person who abused the power of attorney.
It is sad, but necessary in this day and time to be very guarded and protective of anyone holding a power of attorney. This is as true for a family member. As the old adage goes: It seems to be the ones you are closest to that hurt you the most. In fact, oftentimes, it is the family member or friend who borrows a little money with the characterless belief they will pay it back.
With the economy worsening, the temptation to acquire and/or abuse a power of attorney is ripe for occurring.
Who should I be on the lookout for?
• Family Members (especially ones in financial trouble)
• Scam artists
• Someone who befriends an older person
• Any person who exhibits strange and engaging activity, interest, and behavior toward an elderly or person with diminished capacity or ability
Setting up the power of attorney properly to lessen the chance of abuse.
• Seek advice and retain an attorney to create the power of attorney and explain how they work.
• Limit the powers granted under the power of attorney to those duties necessary for the purpose of the document. A “blanket” power of attorney is dangerous!
• Require the agent to provide a semiannual accounting in the power of attorney, which must be provided to a number or responsible persons who understand accounting and willing to take the time to see that the power of attorney is being used appropriately.
• Require the agent to keep all documentation pursuant to the power of attorney, such as receipts, bank statements, a daily or weekly journal or account ledger, etc.
• Consider a court-appointed conservatorship rather than a power of attorney. The courts require reports to be submitted and these are reviewed by the court staff, are public record, and open for inspection.
• It is best to have one person as agent under a power of attorney as co-powers of attorney only create confusion and result in disagreements.
• Should you be acting under a power of attorney for another, keep detailed, hard copy, and electronic copies of all records. Remember, you have a fiduciary duty as you are acting on behalf of another person. You are required by Georgia law to do what is in the best interest of the other person, which may be contrary to your own best interest and wishes.
Our Atlanta, Georgia estate and probate lawyers advocate that any power of attorney should not be entered into without serious consideration, substantial disclosure, and protections in place.