Kelley Kronenberg Partner/Business Unit Leader Joshua Rosenberg, Attorney Matt Moschell, and Paralegal Kim Markowski secured a significant victory when the Fourth District Court of Appeal affirmed a trial court judgment of $907,614.04 obtain by the pair against former power of attorney agents who misappropriated funds from an incapacitated ward in Broward County.  

The case involved an elderly incapacitated couple whose daughter and son-in-law had been granted power of attorney in October 2019 and February 2020. In May 2021, the ward revoked that power of attorney and granted it instead to his son. Shortly thereafter, the guardian initiated legal action on behalf of the ward, alleging the former agents had breached their fiduciary duty to the Ward by transferring hundreds of thousands of dollars to themselves.  During the contested litigation, the elderly wife died before judgment was rendered in their favor.  

An emergency temporary guardian, represented by Kelley Kronenberg, was appointed who later became the plenary guardian of the person and property of the ward. The guardian moved to compel an accounting and return of assets that the former agents misappropriated during the time they acted as fiduciary under the power of attorney. The probate court ordered the former agents to provide an accounting of the ward’s assets from October 16, 2019 through September 30, 2021—the time period encompassing when they had acted under the power of attorney. 

Following an evidentiary hearing during which the court considered bank statements and testimony from the former agents, the probate court found the former agents failed to establish by clear and convincing evidence that several fund transfers totaling over $900,000.00 were made for the ward’s benefit. The transfers included various purchases which were not for the benefit of the Ward.  

The probate court ordered the former agents to return $927,614.04 to the ward’s estate. The former agents appealed, arguing the lower court erred regarding factual findings, evidentiary rulings, and legal conclusions.  

Our team prevailed at the trial court level and supported the appellate counsel, arguing that agents acting under a power of attorney bear the burden to account for funds belonging to the principal and must prove their expenditures benefited the principal. They emphasized that neither the guardian nor the ward has the burden to show the agent acted improperly—rather, if the agent cannot prove expenditures were for the principal’s benefit, they must repay those funds.  

On August 20, 2025, the Fourth District Court of Appeal issued a published per curiam opinion affirming the trial court’s order in all respects except one minor issue. The Court reversed only as to a $20,000.00 wire transfer that predated the time period when the agents had acted under the power of attorney and fell outside the specified accounting timeframe. The Court found this single transfer was not supported by competent, substantial evidence since it occurred before the agents’ authority began.  

The Fourth DCA affirmed the remainder of the judgment, requiring the former agents to return $907,614.04 to the ward’s estate. In applying a mixed standard of review—examining whether factual findings were supported by competent, substantial evidence while reviewing legal conclusions de novo—the Court upheld the probate court’s determination that the former agents failed to meet their burden of proof.  

This published opinion establishes important precedent reinforcing that power of attorney agents bear the affirmative burden to account for and justify their use of a principal’s funds was solely for the benefit of the principal. The decision protects vulnerable adults by clarifying that guardians and wards do not carry the burden of proving agents acted improperly; instead, the burden is solely on the agents, who must affirmatively demonstrate their expenditures benefited the principal or face liability for repayment.  Any guardian, family member, or interested person seeking to defend the rights of an incapacitated person who has been exploited through the misuse of a power of attorney now need not expend additional resources to recover their lost funds, since the law has been clarified to show that the burden has been shifted to breaching fiduciary to prove what they did was without conflicts of interest and for the best interests of the principal. 

For guardians and fiduciaries representing incapacitated individuals, this case provides crucial support for recovering misappropriated assets when former agents cannot justify their financial transactions and allows for a streamlined process that avoids more time consuming and costly litigation for conversion or civil theft. The ruling serves as a strong deterrent against financial exploitation of elderly and vulnerable individuals by those holding powers of attorney.