Trusts, wills and family money
A sibling used Mom's power of attorney to take money before she died. Can we get it back?
Based on an interview with Josué Cristóbal Guerrero, Founding Partner, recorded .
The short answer
Generally yes. A power of attorney lets someone act for your mother. Using that position to get richer breaches the duty of loyalty and other fiduciary duties, and it can lead to financial elder abuse claims and damages well beyond the amount taken.
What the person can face
The property typically has to be given back. On top of that, a court that finds property was wrongfully taken in bad faith, by undue influence in bad faith, or through elder financial abuse will hold the person liable for twice the value of the property recovered. Which remedies apply depends on what was taken, when and how.
Attorney fees matter too. If financial abuse is proven, the court must award the plaintiff reasonable attorney fees and costs.
When real estate is involved
The numbers can get large. Section 859 refers to the value of the property recovered, and our position is that for a house this means the value of the real estate rather than the equity alone. That can reach millions of dollars, and it can be disputed when the property is mortgaged.
- Probate Code section 859. Liability for twice the value of property recovered where it was wrongfully taken in bad faith or through elder financial abuse.
- Welfare and Institutions Code section 15657.5. The court shall award reasonable attorney's fees and costs where financial abuse is proven.
- Probate Code section 850. The petition used to recover property claimed by a trust or estate.
This answer is general information about California law and is not legal advice for any specific situation. Deadlines and exceptions turn on your facts. Code sections were checked against California Legislative Information on November 4, 2026.
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