POA Theft in Florida
POA theft in Florida is serious business. A Power of Attorney is a fiduciary. She is supposed to use the money for the principal’s care. The money does not belong to the POA. In most cases, a POA also cannot change the beneficiary of a bank account. Here’s what you need to know about Florida law if you have discovered POA theft. We have previously provided information about powers of attorney in Florida, financial exploitation, and even a FREE VIDEO.
What you need to know about POA law..
In Florida, a power of attorney is a fiduciary. The person who is the power of attorney is often called the “attorney in fact.” She is supposed to act on behalf of her “principal.” The “principal” is the person who created the power of attorney. Or, think of it this way. The principal is the one who the POA works for. One easy example is the following. A wealthy woman named Nana has her probate lawyer draft a power of attorney. Nana’s power of attorney names Tommy as Nana’s “attorney in fact” or power of attorney. In this example, Nana is the principal. Tommy is the POA, or attorney in fact or “agent.”
But even though the word “agent” is used to describe a POA, Tommy is a fiduciary. Here is a list of Tommy’s duties that he owes Nana: CLICK HERE FOR LIST OF DUTIES. That means that Tommy may use Nana’s money and property for Nana’s care, and Nana’s use. Tommy cannot self deal or engage in conflicted transactions, often called conflicts of interest. Tommy can’t use the POA to change beneficiary designations on retirement accounts, life insurance or bank or financial accounts. The one big exception, however, is if Nana gave Tommy those powers. So, you need to read Nana’s POA document carefully before you accuse Tommy of mis-handling Nana’s money. But, if you ask serious probate litigators who actually try these POA theft cases, what do they say? They would say that, regrettably, many POAs mis-use the power of attorney. Of course, no one who is happy with a POA is calling these POA theft litigators.
(Relatively) New Power of Attorney Statute
Just about everything you need to know about a POA can be found in Part 2 of Florida Statutes Chapter 709. This law is known as the Florida Power of Attorney Act. It was created in 2011 and totally revised, or changed, how probate litigators approach a power of attorney case. If you have “legal standing”, there is a statute which you can use to go to court. You can go to court to have the power of attorney reviewed or to have the POA’s actions reviewed.
What Can I Do?
If you believe that POA theft has occurred, you can file a lawsuit. It may or may not make sense to file a guardianship. Chapter 744 of the Florida Laws is the guardianship code. After all, if a POA is taking someone’s money or doing bad things like POA theft, a guardianship may be needed to protect the vulnerable adult. Know that there is a prevailing party attorneys fee provision in Florida POA Law 709.2116 (3). Some people want to sue the POA for civil theft. That can get you treble damages. But some experienced Florida lawyers who handle POA litigation believe that other laws will help you get damages and attorneys fees just fine. That’s a decision that you will have to make with your trial team.
Like any legal proceeding, there is downside risk to filing any lawsuit, including a civil theft lawsuit. And remember, judges are supposed to look at both, or all, sides. Consider all the evidence. So, your case may not be a slam dunk even if you believe it is. That’s why it’s important to find a litigator who handles trials and evidence. Lots of lawyers say they go to court, but they just want to settle everything. Or, they don’t conduct trials. So, interview as many as you can and compare apples to apples. Ask them how many trials they had during the pandemic. And before the pandemic. Ask them how many witnesses they called to the stand in 2020 or 2019. How long do they cross examine witnesses for?