A durable power of attorney (DPOA) grants an individual the legal authority to manage financial and personal affairs for another person. However, concerns about misuse and lack of transparency can arise, leading to family disputes. On Let’s Talk Legal, attorneys Cecil Harvell and Wes Collins explored the challenges of contesting a power of attorney, the legal standing of family members, and potential solutions such as guardianship.

Concerns Over Power of Attorney Misuse

Family members often worry when an appointed agent under a durable power of attorney appears to be:

• Self-dealing (e.g., selling property below market value).
• Changing bank account beneficiaries without transparency.
• Failing to communicate financial decisions with other family members.

Unfortunately, siblings or children of the principal typically lack standing to challenge the agent’s actions unless they have a vested financial interest.

When Family Members Can Take Legal Action

If the principal (the person who granted the power of attorney) is still competent, they can revoke the power of attorney at any time. However, if they are no longer competent, family members often feel powerless to intervene.

The primary legal avenue to address suspected misuse is guardianship.

Guardianship as a Remedy

If a principal is deemed incompetent, family members can petition for guardianship, which allows for:

• Court oversight of financial decisions.
• Discovery of bank records and transactions.
• The ability to challenge improper financial management.

The process includes:

1. Filing a guardianship petition in the appropriate jurisdiction.
2. Appointment of a guardian ad litem, who represents the interests of the principal.
3. Court hearings and evidence presentation to determine the best course of action.

Breach of Fiduciary Duty & Legal Consequences

Agents under a power of attorney have a fiduciary duty to act in the principal’s best interests. If they misuse their authority, they can be held legally accountable.

Examples of breaches include:

• Using the principal’s funds for personal gain.
• Failing to maintain accurate financial records.
• Transferring assets without justification.

Legal action can be pursued against agents, guardians, executors, or trustees who violate fiduciary responsibilities.

Preventing Power of Attorney Conflicts

To avoid disputes, attorneys recommend:

• Transparency and communication when selecting an agent.
• Sharing financial information with trusted family members.
• Appointing co-agents to ensure checks and balances.

Each family situation is unique, making careful estate planning essential to prevent conflicts and ensure a trusted individual manages financial affairs properly.

Legal Guidance Is Key

Challenging a power of attorney is legally complex. If concerns arise about mismanagement, consulting an attorney early can help navigate guardianship, fiduciary duties, and legal protections for the principal’s best interests.