Embezzlement involves unlawfully depriving the rightful owner of his or her property. Nevertheless, it is different from theft. As Chron.com explains, the individual who deprives the owner of his or her property has to have been in a position of authority over it. The charge of embezzlement therefore implies a breach of duty and a betrayal of trust not inherent in simple theft, or even grand larceny.
A prosecutor charging an individual with embezzlement typically has to prove the presence of four factors.
Taking ownership of property
To prove a charge of embezzlement, a prosecutor has to show that the person charged acted as though he or she was the owner of the property, taking it away from its rightful owner. Interestingly, as FindLaw points out, a person does not have to permanently deprive the owner of his or her property or use the property himself or herself for embezzlement to have occurred.
For example, the administrator of a trust has access to the funds within to carry out his or her managerial duties. If the administer took funds out of the trust for personal use, he or she could face embezzlement charges. This is true even if the administrator paid the funds back or intended to do so. It is also possible for an individual who destroyed the property after taking possession of it to face embezzlement charges.
An accounting error that causes a company to lose money may be an act of negligence, but it is not embezzlement. To prove a charge of embezzlement, a prosecutor has to show that the individual intended to deprive the owner by his or her actions.
Having a fiduciary relationship
Not just anyone can commit embezzlement; only those who have a fiduciary relationship with the owner of a property. In other words, the owner has to have appointed the individual charged to manage the property on the owner’s behalf. An accountant in a company’s employ or the administrator of a trust are both examples of fiduciaries.
Furthermore, the person charged has to have taken advantage of the fiduciary relationship to take possession of the property. Though it may be theft, it is not embezzlement if the appointed fiduciary steals property from the owner that he or she did not have charge of at the time.