A power of attorney is a legal document that grants a person the ability to act on behalf of another. The person giving the power of attorney is known as the principal and the person being appointed to act is the agent. Powers of attorney may permit agents to make medical decisions for principals and the power to perform financial tasks such as selling a principal's real estate, cashing checks and paying bills. The power of attorney becomes effective upon signing or with the occurrence of a specific event, such as the disability of the principal.
A power of attorney automatically expires with the death of the principal, so the agent must immediately cease acting once the principal dies. Those parties who may be entitled to the dead principal's assets, such as heirs or trust beneficiaries, have the legal right to object to the agent's misuse of a power of attorney after the principal's death.
Heirs or other beneficiaries of a decedent's assets may discover that the agent misused a power of attorney before the principal died. In such cases, the agent has unlawfully moved assets from the principal's name to her own, sometimes known as inheritance hijacking. Heirs and beneficiaries may not learn of the misuse until the principal dies and estate assets are discovered missing. Generally, disputes regarding the misappropriation of a decedent's assets are dealt with in probate courts.
An agent owes to his principal a legal duty of loyalty and trust. Crimes such as fraud, larceny and embezzlement may apply if an agent harms a decedent's estate to benefit himself. Criminal charges demand a higher burden of proof than civil claims so they are more difficult to win. In cases of suspected criminal acts, heirs can request that the district attorney pursue criminal charges against agents who loot a principal's estate.
An injured party may file a civil petition to force an agent to return misappropriated assets to a dead principal's estate. Most claims for money, interest, legal fees and court costs fall under civil law remedies. Criminal courts are not generally in the business of collecting money for injured parties, but may impose stiff fines and jail sentences for inheritance hijacking. For example, in Louisiana, exploiting an elderly person by misusing a power of attorney can result in a $10,000 fine and 10 years in jail. In Minnesota, misusing a power of attorney to harm a person with a mental, physical or emotional disability can result in up to 20 years in jail and a maximum $100,000 fine.
Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.