Can a DPOA take property from the principle while they are alive in a hospital?

UPDATED: Sep 30, 2022

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Can a DPOA take property from the principle while they are alive in a hospital?

Grandmother was incapacitated for 2.5 days but regained all her faculties. On day 3, my aunt who is the durable power of attorney, took

paintings and other properties belonging to my grandmother with no knowledge to her or the other family members. The papers say she

can use DPOA when principle is incapacitated. She took the stuff out of state to one of her friend’s houses. What are our options?

Asked on March 20, 2017 under Estate Planning, Michigan


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

A person who is designated to be the agent for a Power of Attorney assumes certain responsibilities. The agent is obligated to act in the best interests of the principal and must always follow their directions. An agent has a "fiduciary duty" which means that the agent must act with honestly and in good faith on behalf of their principal. The agent must keep their money separate from the principal's; keep detailed records concerning all transactions engage din on behalf of the principal's; not profit by any transaction in which the agent represents the principal; and not make a gift or otherwise transfer any of the principal's money or personal/real property to themselves unless the POA explicitly states that they can do so. At this point, you should consult directly with an attorney; they can best advise you further regarding this situation.
Fiduciaries owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.
Various remedies may be available if a fiduciary duty was breached. Common actions for an abuse of a power of attorney, among others, include a petition for an accounting, claim of breach of fiduciary duty, theft, conversion, or a fraud charge.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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