Q: File a petition to remove Power of Attorney in California
What forms do I file a petition with the Probate Department to remove a power of attorney based on financial elder abuse? I have already contacted APS and local police, they are telling me to request the courts for the POA to hand over financial records so the POA can be removed due to the abuse. What petition do I file to do this? The victim has dementia so they can't revoke the POA's access.
A: Unfortunately, this situation will likely require a conservatorship, which is a court-monitored process that can and will revoke the Power of Attorney. If the older adult had a trust in place, it's possible that a conservatorship would not be necessary. Either way, please consult an elder law attorney to assist you.
Since none of the lawyers answering your question has a copy of the specific Power of Attorney at issue in your case, it would be hard to say if you could sign any document that would be filed with the Probate Court to try to remove the agent. [I know you want to know the name of that document, but that's putting the cart before the horse. There is no need to prepare a document if you cannot legally sign it -- and SOMEONE with authority must sign it or the court will not accept it.] The victim will not be able to sign the document if he/she//they lost mental capacity to the point the victim no longer fully understands what the document says.
I strongly suggest you contact an attorney who practices Conservatorship law and give the lawyer both the Power of Attorney ("POA") and any other document you have proving the elder abuse claim. You could even save some money by putting together a bullet point list of all the evidence of abuse that you have, and give that list to the attorney. It also helps to take your time to put that list together, rather than try to think of everything while sitting in the lawyer's office.
Your lawyer will want to know if the POA provides for a way to remove the Agent and, if so, who is authorized to do so. If there is no such provision, a Conservatorship attorney can help you determine if you have enough evidence of elder abuse to go into court on a rush basis to obtain a restraining order or if you need to go the traditional route of becoming the victim's conservator. Be mindful that the current agent under the POA will likely contradict what you say and argue that the agent is doing a great job. That's why you need evidence to break the stalemate of the inevitable "he said, she said". Best wishes.
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