# Unique Remedies

> Unique remedies in respect of Powers of Attorney

Source: https://wiki.powersofattorney.com/regremedies · Updated 6 April 2025

> [The term **‘remedy’ in this Wiki** focuses upon relief that is unique to *Powers of Attorney*](https://wiki.powersofattorney.com/regremedies#the-term-remedy-in-this-wiki-focuses-upon-relief-that-is-unique-to-powers-of-attorney)
> 
> [**Common law remedies** are **difficult to identify**](https://wiki.powersofattorney.com/regremedies#common-law-remedies-are-difficult-to-identify)
> 
> [A **general word** about remedies](https://wiki.powersofattorney.com/regremedies#a-general-word-about-remedies)
> 
> [In the Six (6) Greater States **legislative remedies are not exclusive**](https://wiki.powersofattorney.com/regremedies#in-the-six-6-greater-states-legislative-remedies-are-not-exclusive)
> 
> [**Abusing a** ***Power of Attorney***may constitute **a federal offence**](https://wiki.powersofattorney.com/regremedies#abusing-a-power-of-attorney-may-constitute-a-federal-offence)
> 
> [**Abusing a** ***Power of Attorney** m*ay constitute **a state offence**](https://wiki.powersofattorney.com/regremedies#abusing-a-power-of-attorney-may-constitute-a-state-offence)
> 
> [A Court may make **orders for partial enforcement** of a *Power of Attorney*](https://wiki.powersofattorney.com/regremedies#a-court-may-make-orders-for-partial-enforcement-of-a-power-of-attorney)
> 
> [A Court may make **orders refusing to enforce a** ***Power of Attorney***](https://wiki.powersofattorney.com/regremedies#a-court-may-make-orders-refusing-to-enforce-a-power-of-attorney)
> 
> [**Commercial entities** are not subject to legislation involving remedies](https://wiki.powersofattorney.com/regremedies#commercial-entities-are-not-subject-to-legislation-involving-remedies)
> 
> [**REFERENCES**](https://wiki.powersofattorney.com/regremedies#six-6-greater-states)
> 
> - [**California**](https://wiki.powersofattorney.com/regremedies#california)
> - [**Texas**](https://wiki.powersofattorney.com/regremedies#texas)
> - [**New York and Illinois**](https://wiki.powersofattorney.com/regremedies#new-york-illinois)
> - [**Florida**](https://wiki.powersofattorney.com/regremedies#florida)
> - [**Pennsylvania**](https://wiki.powersofattorney.com/regremedies#pennsylvania)

## The Term ‘Remedy’ In This Wiki Focuses Upon Relief That Is Unique to *Powers of Attorney*

This page about remedies focuses upon relief that is particularly unique to *Powers of Attorney*, expressly referred to in the [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) accepting that the actual range of remedies in respect of any *Power of Attorney* would be far-ranging, touching upon equitable relief where a *Power of Attorney* has been improperly obtained, injunctive relief seeking to restrain an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) from taking certain action, criminal sanctions and other possible outcomes.

## Common Law Remedies Are Difficult To Identify

Determining [common law](https://wiki.powersofattorney.com/terms#meaning-of-common-law) remedies would be a difficult exercise and is [outside the scope](https://wiki.powersofattorney.com/aboutthiswiki#what-is-outside-the-focus-of-this-wiki) of this Wiki.

## A General Word About Remedies

It is beneficial to remember that at all times, *Powers of Attorney* involve a unique duty that Courts are anxious to protect, the concept of a [fiduciary](https://wiki.powersofattorney.com/terms#meaning-of-fiduciary) duty.

In many states, government agencies have been established to monitor conduct including abuse of *Powers of Attorney*, some of which are mentioned in [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) (for example [§5604D](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5604.html) Pennsylvania).

## In The Six (6) Greater States Legislative Remedies Are Not Exclusive

As noted below in respect of each of the [Six (6) Greater States](https://wiki.powersofattorney.com/aboutthiswiki#the-six-6-greater-states-ca-tx-ny-fl-il-and-pa), [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) contains references to the non-exclusive nature of remedies under the [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states).

## Abusing A *Power Of Attorney* May Constitute A Federal Offence

[§495](https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-495.html) imposes sanctions for anyone who inter alia, *“falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money”.*

## Abusing A *Power Of Attorney* May Constitute A State Offence

The kinds of remedies identified in respect of **Texas** and **California** below by way of introduction to the kinds of criminal offences that may be prosecuted in different states may have equivalents in other States.

## **A Court May Make Orders For Partial Enforcement Of A** ***Power of Attorney***

A Court may refuse to give effect to certain contents of a *Power of Attorney* and yet, uphold other parts of the *Power of Attorney*.

For example, a Court may merely refuse to recognise a *Power of Attorney* as capable of authorising an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform a particular transaction, task or function, whilst upholding the *Power of Attorney* as effective for the purpose of authorising an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform other transactions, tasks or functions.

Consider for example, the following legislative provisions in **Texas** that operate with respect to a [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Power of Attorney*:-

- [§751.031(b)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) limits the authority of an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform certain functions unless the *Power of Attorney* expressly provides for the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to have such authority (dealing with matters like gifting the [principal's](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) property, changing beneficial designations and similar) and limiting any such express authority so as to prevent it being exercised to benefit the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) or anyone to whom the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) owes a legal obligation of support, unless the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) is an ancestor, spouse or descendant of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney)
- [§751.032](https://codes.findlaw.com/tx/estates-code/est-sect-751-032.html) limits the extent to which an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may gift the property of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney)

If for example, an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) sought to rely upon a *Power of Attorney* to perform a function required to be expressly authorized under [§751.031(b)](https://codes.findlaw.com/tx/estates-code/est-sect-751-031.html) and in the *Power of Attorney* that function was not expressly authorized to be performed by the agent, it is likely that a Court would refuse to uphold any entitlement on the part of the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform that function, whilst perhaps upholding the entitlement of the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) to perform other functions, as authorized by the *Power of Attorney*.

## **A Court May Make Orders Refusing To Enforce A** ***Power of Attorney***

For example:-

- because the *Power of Attorney* was created as a result of duress, coercion or unconscionable conduct
- because the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) lacked capacity at the time that the *Power of Attorney* was created
- because it contains errors in construction (ie. the *Power of Attorney* is nonsensical)
- because it is for an unsatisfactory purpose (ie. if the *Power of Attorney* is for an illegal purpose)
- because its purpose has been fulfilled
- because an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) appointed under the *Power of Attorney* is unsuitable to be appointed as an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) (ie. is bankrupt etc)

A Court may determine a *Power of Attorney* to be partly enforceable, for example by giving effect to some but not all of its terms.

The implications of a Court refusing to enforce a *Power of Attorney* or for example, determining that the effect of the *Power of Attorney* is different to that perceived by an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may be far-reaching, particularly if a person purporting to be an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) has undertaken various transactions upon the presumption that the *Power of Attorney* was valid and effective for particular purposes. In Texas for example, the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) may be liable for loss suffered by the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) as a consequence of their actions, be exposed to potential [criminal prosecution](https://wiki.powersofattorney.com/regremedies#abusing-a-power-of-attorney-may-constitute-a-federal-offence).

The information set out under five (5) headings below is focused upon reasons that a Court may refuse to give effect to a *Power of Attorney* that was created in the US State to which it is [inexorably linked](https://wiki.powersofattorney.com/propinotherstates#inexorably-linked).

## Commercial Entities Are Not Subject to Legislation Involving Remedies

Legislative relief available in respect of a *Powers of Attorney* under [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) in the [Six (6) Greater States](https://wiki.powersofattorney.com/aboutthiswiki#the-six-6-greater-states-ca-tx-ny-fl-il-and-pa) does not apply to *Powers of Attorney* created by [commercial entities](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity).

That said, there are [common law](https://wiki.powersofattorney.com/terms#meaning-of-common-law) remedies available to [commercial entities](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity), which are [outside the scope](https://wiki.powersofattorney.com/aboutthiswiki#what-is-outside-the-focus-of-this-wiki) of this Wiki but involve for example, breach of [fiduciary](https://wiki.powersofattorney.com/terms#meaning-of-fiduciary) duty and other causes of action.

Care should be taken when creating a *Power of Attorney* for a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) to ensure that there is no restriction in respect of creation of the *Power of Attorney* imposed by virtue of the *Articles of Association* or partnership agreement, governing the corporation or partnership.

A Court may refuse to give effect to a *Power of Attorney* created by a [commercial entity](https://wiki.powersofattorney.com/terms#meaning-of-commercial-entity) if it was not executed in accordance with relevant [constituting documents](https://wiki.powersofattorney.com/terms#meaning-of-constituting-documents).

## REFERENCES

### California

The standard notice in ([§4128](https://codes.findlaw.com/ca/probate-code/prob-sect-4128.html)) reminds [agents](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) that:

*"If you transfer the principal's property to yourself without specific authorization in the power of attorney, you may be prosecuted for fraud and/or embezzlement.*

*If the principal is 65 years of age or older at the time that the property is transferred to you without authority, you may also be prosecuted for elder abuse under* [*§368*](https://codes.findlaw.com/ca/penal-code/pen-sect-368.html)*. In addition to criminal prosecution, you may also be sued in civil court."*

### Texas

[₷751.106](https://codes.findlaw.com/tx/estates-code/est-sect-751-006.html) states:

“*The remedies under this chapter are not exclusive and do not abrogate any right or remedy under any law of this state other than this chapter.”*

In particular with respect to remedies:-

- in Texas the [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) governing *Powers of Attorney* only applies to [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) *Powers of Attorney,* being Chapters [751](https://statutes.capitol.texas.gov/Docs/ES/htm/ES.751.htm), [752](https://statutes.capitol.texas.gov/Docs/ES/htm/ES.752.htm) and [753](https://statutes.capitol.texas.gov/Docs/ES/htm/ES.753.htm) of the *Texas Estates Code*.
- whereas in New York, Florida and Pennsylvania for example, [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) governs [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) and [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney-wont-operate-if-the-principal-lacks-capacity) *Powers of Attorney* together

In Texas, a person who, without the consent of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney), intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another person on agreement or understanding that the benefit will influence the conduct of the [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) in relation to the affairs of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) is committing a criminal offence ([§32.43](https://codes.findlaw.com/tx/penal-code/penal-sect-32-43.html#:~:text=(b)%20A%20person%20who%20is,to%20the%20affairs%20of%20his)).

In addition:-

- an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) who intentionally, knowingly, or recklessly misapplies property of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in a manner that involves substantial risk of loss to the the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) is committing a criminal offence ([§32.45](https://codes.findlaw.com/tx/penal-code/penal-sect-32-45.html#:~:text=(b)%20A%20person%20who%20is,to%20the%20affairs%20of%20his) ; [§13.32](https://codes.findlaw.com/tx/code-of-criminal-procedure/crim-ptx-crim-pro-art-13-32.html))
- an [agent](https://wiki.powersofattorney.com/agentswhatisagent#an-agent-is-an-entity-appointed-by-the-principal-to-represent-and-bind-the-principal) who intentionally, knowingly, or recklessly misapplies property of the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) in a manner that involves substantial risk of loss to the the [principal](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) is not entitled to certain defences diminishing the extent of their exposure where the actions of anyone else contribute to the [principal's](https://wiki.powersofattorney.com/principal#the-principal-is-the-entity-that-makes-the-power-of-attorney) loss ([§33.013](https://codes.findlaw.com/tx/civil-practice-and-remedies-code/civ-prac-rem-sect-33-013.html))

Any criminal prosecution does not prevent a Court from ordering other relief ([§12.01](https://codes.findlaw.com/tx/penal-code/penal-sect-12-01.html)).

A person who for example, swears a false Affidavit in response to a request from a [third party](https://wiki.powersofattorney.com/terms#meaning-of-third-party) might be prosecuted under [§37.02](https://codes.findlaw.com/tx/penal-code/penal-sect-12-01.html).

In addition to criminal sanctions, [§281.001(B)](https://codes.findlaw.com/tx/finance-code/fin-sect-281-001.html) imposes reporting requirements on employees of financial institutions to report “Financial exploitation” which is defined to include:-

*"(B) an act or omission by a person, including through the use of a power of attorney on behalf of, or as the conservator or guardian of, another person, to:*

*(i) obtain control, through deception, intimidation, fraud, or undue influence, over the other person's money, assets, or other property to deprive the other person of the ownership, use, benefit, or possession of the property; or*

*(ii) convert the money, assets, or other property of the other person to deprive the other person of the ownership, use, benefit, or possession of the property."*

### New York & Illinois

**New York** and **Illinois** have provisions protecting various specific remedies as non-exclusive but lack an all inclusive protection of the kind seen in the other four of the [Six (6) Greater States](https://wiki.powersofattorney.com/aboutthiswiki#the-six-6-greater-states-ca-tx-ny-fl-il-and-pa).

[§2-7](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-6.html) states:

*"This subsection does not limit any other applicable legal or equitable remedies"* in the context of express sanctions against an [agent](https://wiki.powersofattorney.com/agentswhatisagent#what-is-an-agent) who breaches their [fiduciary](https://wiki.powersofattorney.com/terms#meaning-of-fiduciary) and related [legislative duties](https://wiki.powersofattorney.com/agentoblig#an-agent-owes-legislative-duties).

[§2-10](https://codes.findlaw.com/il/chapter-755-estates/il-st-sect-755-45-2-10.html) provides (underlining added):

*"(a) Upon petition by any interested person (including the agent), with such notice to interested persons as the court directs and a finding by the court that the principal lacks either the capacity to control or the capacity to revoke the agency, the court may construe a power of attorney, review the agent's conduct, and grant appropriate relief including compensatory damages.*

*(b) If the court finds that the agent is not acting for the benefit of the principal in accordance with the terms of the agency or that the agent's action or inaction has caused or threatens substantial harm to the principal's person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal's person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency, or may enter such other orders without appointment of a guardian as the court deems necessary to provide for the best interests of the principal.*

*(c) If the court finds that the agency requires interpretation, the court may construe the agency and instruct the agent, but the court may not amend the agency.*

*(d) If the court finds that the agent has not acted for the benefit of the principal in accordance with the terms of the agency and the Illinois Power of Attorney Act, or that the agent's action caused or threatened substantial harm to the principal's person or property in a manner not authorized or intended by the principal, then the agent shall not be authorized to pay or be reimbursed from the estate of the principal the attorneys' fees and costs of the agent in defending a proceeding brought pursuant to this Section.*

*(e) Upon a finding that the agent's action has caused substantial harm to the principal's person or property, the court may assess against the agent reasonable costs and attorney's fees to a prevailing party who is a provider agency as defined in Section 2 of the Adult Protective Services Act, a representative of the Office of the State Long Term Care Ombudsman, the State Guardian, a public guardian, or a governmental agency having regulatory authority to protect the welfare of the principal…*

*(f) As used in this Section, the term “interested person” includes (1) the principal or the agent;  (2) a guardian of the person, guardian of the estate, or other fiduciary charged with management of the principal's property;  (3) the principal's spouse, parent, or descendant;  (4) a person who would be a presumptive heir-at-law of the principal;  (5) a person named as a beneficiary to receive any property, benefit, or contractual right upon the principal's death, or as a beneficiary of a trust created by or for the principal;  (6) a provider agency as defined in Section 2 of the Adult Protective Services Act, a representative of the Office of the State Long Term Care Ombudsman, the State Guardian, a public guardian, or a governmental agency having regulatory authority to protect the welfare of the principal;  and (7) the principal's caregiver or another person who demonstrates sufficient interest in the principal's welfare.*

*(h) Proceedings under this Section shall be commenced in the county where the guardian was appointed or, if no Illinois guardian is acting, then in the county where the agent or principal resides or where the principal owns real property.*

*(i) This Section shall not be construed to limit any other remedies available."*

### Florida

In states like **New York**, **Florida**, **Illinois** and **Pennsylvania**, remedies available under [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) tend to attach to [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) and [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney-wont-operate-if-the-principal-lacks-capacity) *Powers of Attorney* with less distinction than **Texas**.

[§709.2301](https://codes.findlaw.com/fl/title-xl-real-and-personal-property/fl-st-sect-709-2301.html) states:-

"*The common law of agency and principles of equity supplement this part, except as modified by this part or other state law*."

### Pennsylvania

In states like **New York**, **Florida**, **Illinois** and **Pennsylvania**, remedies available under [legislation](https://wiki.powersofattorney.com/legislation#legislation-varies-between-the-six-6-greater-states) tend to attach to [durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#a-durable-power-of-attorney-operates-if-the-principal-lacks-or-may-lack-capacity) and [non-durable](https://wiki.powersofattorney.com/typescommonlyusedpersons#non-durable-powers-of-attorney-wont-operate-if-the-principal-lacks-capacity) *Powers of Attorney* with less distinction than **Texas**.

[§5612](https://codes.findlaw.com/pa/title-20-pacsa-decedents-estates-and-fiduciaries/pa-csa-sect-20-5612.html) states:-

*"Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter"*