A durable power of attorney can provide essential protection when someone becomes unable to manage finances independently.

But that authority is substantial—and sometimes abused.

At The Gigele Law Firm, our attorneys assist families and interested parties when an agent under a Florida power of attorney is suspected of misusing authority, improperly transferring assets, or financially exploiting a vulnerable person.

What Does an Agent Under a Power of Attorney Owe the Principal?

An agent is not given authority simply to do whatever he or she wants with the principal’s assets.

The power comes from the legal instrument and is accompanied by fiduciary obligations.

Problems may arise when the agent begins using that authority primarily for the agent’s own benefit rather than the principal’s legitimate purposes.

Warning Signs of Power of Attorney Abuse

Possible warning signs include:

  • unexplained withdrawals;
  • checks written to the agent;
  • large “gifts”;
  • new joint accounts;
  • sudden changes in title to property;
  • transfers of real estate;
  • unexplained liquidation of investments;
  • payments of the agent’s personal expenses;
  • refusal to provide financial records;
  • isolation of the principal from other family members;
  • abrupt estate-plan changes;
  • missing personal property; or
  • transactions inconsistent with the principal’s established wishes.

A suspicious transaction does not automatically establish wrongdoing, but patterns of unexplained activity warrant investigation.

What Happens to a Power of Attorney When Guardianship Is Filed?

Florida law expressly addresses this issue.

When proceedings are initiated to determine the principal’s incapacity, authority under a power of attorney may be suspended subject to statutory rules. Special provisions apply when the agent is the principal’s parent, spouse, child, or grandchild.

For certain family-member agents, a verified motion may seek suspension based upon grounds including:

  • decisions inconsistent with the person’s known desires;
  • invalidity of the power of attorney;
  • failure to discharge duties;
  • incapacity of the agent;
  • abuse of powers; or
  • danger that property will be wasted, misappropriated, or lost.

Importantly, Florida law also recognizes that a mere dispute between the agent and petitioner may belong in another forum rather than automatically justifying intervention through guardianship.

Power of Attorney Abuse and Elder Exploitation

Power-of-attorney misconduct can also intersect with Florida’s elder-exploitation laws.

Section 825.103 addresses exploitation of elderly persons and disabled adults and specifically includes certain breaches of fiduciary duties by agents under powers of attorney that result in unauthorized appropriation, transfer, misuse, or improper benefit.

Depending upon the facts, a situation may therefore involve guardianship remedies, civil claims, exploitation proceedings, or other legal action.

Can Guardianship Stop Power of Attorney Abuse?

Potentially.

An incapacity proceeding may allow the court to address whether the power of attorney remains an adequate alternative to guardianship and whether the agent’s authority should continue.

In urgent cases, the circumstances may also support consideration of an [Emergency Temporary Guardianship].

The correct remedy depends heavily upon:

  • whether the principal remains competent;
  • who the agent is;
  • what the power of attorney authorizes;
  • what transactions have occurred;
  • whether assets remain at risk;
  • whether other fiduciaries or trusts are involved; and
  • what immediate protection is needed.

What Should You Do If You Suspect Abuse?

Where assets may be disappearing, preserve available evidence.

Potentially useful records include:

  • bank statements;
  • canceled checks;
  • brokerage statements;
  • deeds;
  • power-of-attorney documents;
  • trust documents;
  • communications;
  • credit-card statements; and
  • records reflecting transfers or unusual purchases.

Avoid assuming that every unusual transaction is improper, but do not ignore unexplained financial activity involving a vulnerable adult.

Speak With Florida Attorneys About Power of Attorney Abuse

These cases often require quick assessment of guardianship law, fiduciary duties, estate-planning documents, and financial records.

If you believe someone is abusing a Florida power of attorney, call The Gigele Law Firm at (772) 222-6548.