Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
People granted power of attorney may be tempted to exploit a deceased person’s estate and act in their own interest.
If you feel that this might be happening in your family, you must act quickly to protect your loved one’s estate from further harm.
Taking legal action can be a chaotic process, so we recommend seeking assistance from a reputable lawyer to understand your options.
In the meantime, here’s what you can do when you suspect that the deceased loved one’s agent is taking advantage of their estate.
A power of attorney (POA) is a legal document that grants someone (known as an agent or attorney-in-fact) legal authority to manage another person’s financial and legal matters while that person still lives.
The person who grants that power is called the principal.
The trusted person who receives the authority is called an agent. An agent can be any competent individual whom the principal chooses to act on their behalf, such as a family member or a friend.
In some cases, the principal may hire an attorney to act as their agent in specific legal matters, but this is not a requirement for a power of attorney agreement.
The person granted with power of attorney is responsible for acting in the best interests of the person they represent. Understanding the agent’s responsibilities helps you recognize whether they acted within their bounds.
The agent should act with care, loyalty, and honesty and avoid conflicts of interest or self-dealing. They must also keep accurate records of their actions and be prepared to provide those records upon request.
Under Georgia law, the financial power of attorney immediately ends when the principal passes away.
After the principal dies, the agent loses the ability to move money around and make decisions for the deceased. The will of the deceased or Georgia law for intestacy would then take over.
Another way a power of attorney can end is when the principal revokes it.
Often, when discussing topics about power of attorney, a usual question comes up:
The answer is no. Having a power of attorney does not exempt anybody from the probate process.
If you use a power of attorney instead of following proper probate procedures, you may be held liable for estate decisions.
Both an agent and a personal representative are responsible for managing legal and financial matters, but they differ in some ways.
An agent’s authority ends when the person who granted them power of attorney dies. On the other hand, a personal representative takes over after the person’s passing.
Additionally, an executor or administrator is appointed through a will or Probate Court, while a power of attorney is granted by the person who selected their own agent.
Several signs may indicate that an agent abused their authority. The common ones are:
Power of attorney abuse can manifest in multiple ways.
A common first step that is taken when you discover that the agent has breached a power of attorney is to consider objecting to that person becoming the estate’s personal representative.
If the agent has already been appointed as the personal representative, you can raise an objection in other ways.
For example, if that person has committed improper actions while representing the estate, you can bring it to court along with the potential breach of power of attorney.
These types of probate situations are incredibly complicated. We recommend seeking assistance from a probate attorney to help you navigate the legal process.
When you object to the agent becoming a personal representative, it starts a legal procedure called the discovery process.
During this procedure, both sides must share all the important information, such as financial documents, emails, and other communications. These documents will help reveal whether the agent breached their fiduciary duty.
When you object to an appointment, you can stop further actions that can harm the estate. This avoids more problems or mistakes while the legal proceedings are ongoing.
For example, the court may order the agent to stop selling any estate assets or making new transactions until the dispute is resolved.
If you believe the deceased left a will, you can request the court to order the will holder to deliver it to the Probate Court. Once the will is delivered, you can examine it to see if it appears valid. This will help you decide whether to challenge it or to support it.
If you know that the deceased did not have a will, you can petition the court to establish an estate and nominate yourself as the administrator.
In emergencies where there are stolen assets, or real estate is being foreclosed upon, immediate legal intervention may be necessary. In this case, it may be appropriate to ask the court for short-term emergency powers given under temporary letters of administration.
The temporary administrator has limited authority, but it is usually enough to stop a third party from causing any more damage to the estate. This power also allows you to gather details about estate assets and past financial transactions.
All this information is vital to uncovering any potential abuses that the agent might have done.
While you cannot undo a power of attorney abuse, you can still protect yourself and other family members from similar situations by being very selective when choosing an agent.
Consider choosing someone you know and trust with a responsible financial management and decision-making history.
You also need to set clear expectations and boundaries from the outset so that you and your agent understand your respective roles and responsibilities.
Finally, regularly reviewing and updating your estate planning documents is a good idea to ensure they reflect your wishes and intentions as your circumstances change.
Making things right for your deceased loved one by holding the agent accountable despite the overwhelm and stress is a brave act. However, courage can wear out when you realize that the situation is more challenging than you anticipated, so we highly recommend seeking assistance from a professional. Our experienced lawyers are here to support and guide you through this difficult time. Do not hesitate to reach us at (770) 796-4271 if you suspect POA abuse.
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