Misused Power of Attorney or Trust

Family and trust relationships are one of the settings our elder abuse and neglect page lists for financial exploitation. A power of attorney or a trust gives one person real control over a parent's money, and California law attaches duties, record-keeping rules and court oversight to that control. This guide explains how a family can use them.

Two documents come up again and again. Under a power of attorney, Mom (the "principal") names an agent, called an "attorney-in-fact," to act for her. Under a trust, a trustee holds and manages property for the beneficiaries, and Mom is often both the person who created it and its first trustee. The rules differ, so start by finding out which document the relative is using.

What can we do, step by step?

Make sure Mom is safe and report the concern. In Sonoma County, Adult Protective Services takes reports 24 hours a day at (707) 565-5940 or (800) 667-0404, or online.
Get copies of the documents: the power of attorney, the trust and every amendment, and any recent deeds or beneficiary changes.
Ask for the records in writing. An agent must keep records of every transaction made for Mom (Probate Code 4236). Date your request and keep a copy, because the 60-day clock for a court petition starts from it (Probate Code 4541(c)).
Talk with Mom, if she can. While she has capacity, she can revoke the agent's authority herself, orally or in writing (Probate Code 4153).
Petition the probate court if the records do not come or show misuse: under Probate Code 4540 and 4541 for a power of attorney, or Probate Code 17200 for a trust.
Ask for a protective order if there is abuse or intimidation (Welfare and Institutions Code 15657.03).
Recover the money through a surcharge in the probate case or a financial elder abuse claim, within four years of discovery (Welfare and Institutions Code 15657.7).

Power of attorney or trust: which rules apply?

	Power of attorney (agent)	Trust (trustee)
Core duty	Act solely in Mom's interest and avoid conflicts of interest (Probate Code 4232)	Administer the trust solely in the beneficiaries' interest (Probate Code 16002)
Records and accounts	Keep records of all transactions; account when Mom, her conservator or a court asks, or after her death her personal representative or successor (Probate Code 4236)	While the trust is revocable and Mom is competent, the duties are owed to her (Probate Code 15800(a)); once no one who can revoke it is competent, the duty to account goes to the beneficiaries (15800(b))
Who can ask the court	Mom, her spouse, a relative, her conservator, the court investigator, the public guardian, or any interested person or friend (Probate Code 4540)	A trustee or beneficiary, subject to the rules for revocable trusts (Probate Code 17200 and 15800)
What the court can order	An accounting if none is given within 60 days of a written request; review of the agent's acts; revocation in limited cases (Probate Code 4541)	An account, instructions, removal of the trustee, and redress of a breach "by any available remedy" (Probate Code 17200(b))
Bad-faith taking	Twice the value of the property recovered (Probate Code 4231.5(c))	Twice the value of the property recovered (Probate Code 859)

What must the agent under a power of attorney do?

The agent has a duty to act solely in Mom's interest and to avoid conflicts of interest (Probate Code 4232(a)). As far as reasonably practicable, the agent must keep in regular contact with her, communicate with her and follow her instructions (Probate Code 4234). If her capacity is in question, the agent may consult her doctor, family and advisers to get the information needed to act for her (Probate Code 4235).

The agent must keep records of all transactions entered into for her. The duty to give a formal account arises when Mom asks, when the document requires it, when her conservator asks, after her death when her personal representative or successor asks, or on court order, and those record rules cannot be waived by the power of attorney (Probate Code 4236). An agent is not breaking the loyalty rule simply because they also benefit, for example by living in the house (Probate Code 4232(b)); the question is whether Mom's money is being used for Mom.

When can the court step in?

A petition about a power of attorney can ask the court to decide whether it is still in effect, to pass on the agent's acts, to compel the agent to account if no account was given within 60 days of the petitioner's written request, or to revoke the agent's authority (Probate Code 4541). Revocation by the court requires three findings: the agent violated or is unfit to perform the duties, Mom lacks the capacity to give or revoke a power of attorney at that time, and revoking it serves the interests of Mom or her estate (Probate Code 4541(d)).

A power of attorney can cut off some family members' right to petition, but only if Mom signed it with a lawyer's advice and the lawyer signed a certificate saying so, and it can never stop Mom, the agent, her conservator or the public guardian from petitioning (Probate Code 4503). Read the document for that certificate.

When an agent breaches a duty, the court can charge the agent with the loss in value, with interest, any profit the agent made, and profit Mom would have earned (Probate Code 4231.5(a)). A court can excuse an agent who acted reasonably and in good faith (4231.5(b)). A bad-faith taking, or a taking by undue influence in bad faith or through financial elder abuse, makes the person liable for twice the value of the property recovered, plus attorney's fees in the court's discretion (Probate Code 4231.5(c)).

What if it is Mom's trust?

Many parents hold their home and savings in a revocable living trust. While the trust is revocable and Mom is competent, the trustee's duties are owed to her, and she, not the children named as beneficiaries, holds the beneficiaries' rights (Probate Code 15800(a)). That changes once no one who can revoke the trust is competent: within 60 days of receiving information establishing that incompetency, the trustee must send the beneficiaries notice and a complete copy of the trust and its amendments, and the duty to account at least once a year runs to them (Probate Code 15800(b)).

A trustee or beneficiary can then petition the court about the trust's internal affairs, including to settle accounts and review the trustee's acts, to compel an account if none was given within 60 days of a beneficiary's written request and none was made in the six months before it, to remove the trustee, and to compel redress of a breach (Probate Code 17200). If a person took trust property in bad faith or through financial elder abuse, Probate Code 859 makes them liable for twice the value recovered.

Where are these petitions heard in Sonoma County?

In the Superior Court's probate division, which hears petitions about the administration of trusts as well as conservatorships. The court's announcement moved its probate clerk's office to the new Hall of Justice, 625 Administration Drive, Santa Rosa, on July 20, 2026, and the probate courtroom to Department 63 on the sixth floor on July 27. The court's location page for 3055 Cleveland Avenue still lists a probate clerk's office, so call (707) 521-6500 before you go. A separate damages lawsuit would be a civil case; see what to expect at Sonoma County Superior Court. The county agencies that help older adults are listed on our Sonoma County page.

Is it also elder financial abuse?

Often it can be. The Elder Abuse Act covers property an elder is deprived of whether it is held directly or by a "representative," a term that includes a trustee and an agent acting under a power of attorney (Welfare and Institutions Code 15610.30). Undue influence by a family member or fiduciary is judged by the factors in Welfare and Institutions Code 15610.70, such as isolating Mom, controlling her information, or making changes in haste or secrecy. When financial abuse is proven, the court must award attorney's fees and costs (Welfare and Institutions Code 15657.5). Our guide on how a family can recover money taken from an elder explains those remedies in full. For how the Act treats neglect and physical abuse, see what the Elder Abuse Act adds to a claim.

What changes the answer?

Mom still has capacity. She can revoke the agent's authority herself (Probate Code 4153), and the court's power to revoke in section 4541(d) applies only when she lacks capacity. Her wishes come first.

The document limits petitions. A lawyer's certificate under Probate Code 4503 can bar some relatives from petitioning, but not Mom, her conservator or the public guardian, who can still act.

The agent acted in good faith. A court may excuse an agent who acted reasonably and in good faith from part or all of the liability (Probate Code 4231.5(b)).

Mom has died. The power of attorney generally ends at death (Probate Code 4152), but her personal representative or successor may demand an account (Probate Code 4236) and may bring her abuse claims; see elder abuse claims after a parent has died.

The person is a paid caregiver, not a relative. An employer and its bond or insurance may be involved; see abuse by an in-home caregiver.

Years have passed. A financial abuse claim must be filed within four years of discovery (Welfare and Institutions Code 15657.7); see elder abuse deadlines in California. Injury claims have shorter limits, listed in our guide to California personal injury deadlines.

What could this look like? An example

For example, imagine an 80-year-old mother in Petaluma who named her son as her agent under a durable power of attorney. Her daughter notices that bills are going unpaid while checks from Mom's account go to the son's landscaping business. On June 1, the daughter writes to her brother asking for a report of every transaction he has made for Mom, and she calls Adult Protective Services.

By August, no report has arrived. Because more than 60 days have passed since her written request, the daughter, as a relative, petitions the probate court to compel an accounting. The account shows $45,000 paid to the business. Mom's doctor confirms advanced dementia, so the daughter asks the court to revoke her brother's authority on the three findings section 4541(d) requires. If the court finds he took the money in bad faith, he can be liable for twice the value recovered under Probate Code 4231.5(c). This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do families make?

Asking for the records only by phone, so the 60-day period never starts.
Assuming the children named in Mom's trust can demand accounts while she is competent and the trust is revocable.
Filing in court before reading the power of attorney for a lawyer's certificate or an accounting clause.
Treating a caregiving sibling's every expense as theft, when an agent may also benefit without breaching the loyalty duty.
Letting the four-year financial abuse deadline pass while the family argues.

What should we do this week?

Get copies of the power of attorney, the trust and every amendment.
Send a dated written request for a report of all transactions, and keep proof of delivery.
Call Adult Protective Services if Mom is at risk or money is still leaving her accounts.
Ask Mom's doctor what the medical records say about her capacity.
List the transactions that worry you, with dates and amounts.
Call the probate clerk to confirm where to file.
Read our older article on legal support for seniors for nonprofit resources in Northern California.

Frequently asked questions

Can I see the agent's records just by asking?

The right to examine and copy the records belongs to Mom, her conservator, after her death her personal representative or successor, and anyone a court orders (Probate Code 4236(c)). A relative's written request matters because it starts the 60 days before a petition to compel an account (Probate Code 4541(c)).

Can the court remove my brother as agent if Mom still has capacity?

Not under section 4541(d), which requires that she lack capacity. While she has capacity, she can revoke his authority herself (Probate Code 4153).

Is a family member who also benefits automatically in breach?

No. An agent is not in breach solely because they also benefit or have conflicting interests (Probate Code 4232(b)). The question is whether the agent acted in Mom's interest.

Can Adult Protective Services go to court for Mom?

In some cases. A county adult protective services agency may petition for an elder abuse protective order when the elder has an impaired ability to understand the risk or has authorized the agency in writing (Welfare and Institutions Code 15657.03).

What does an elder abuse protective order cover?

It can order a person to stay away and stop contact, exclude them from the home in some cases, and, after a hearing, find that specific debts were incurred through financial abuse (Welfare and Institutions Code 15657.03).

Do we need a conservatorship?

Not always. Petitions under the power of attorney and trust statutes can be filed without one, but if no one can safely manage Mom's affairs, the probate court also hears conservatorship petitions, and the public guardian may petition about a power of attorney (Probate Code 4540).

If a relative may be misusing a parent's power of attorney or trust, contact Young Law Group today at (707) 343-0556 or through our contact page to schedule your free and confidential consultation.

A relative is misusing Mom's power of attorney or trust: what can we do?