Taking Control of Aunt Gertrude’s Estate

           If you have been following our story of Aunt Gertrude and her niece  and attorney-in-fact, Milly, you have heard me spin some real yarns about what Milly has done. Today, let’s look at what could happen after Aunt Gertrude dies.
           Suppose Aunt Gertrude had trusted Milly for years and that for years Milly was trying to do all she could to help her dear Aunt. Then, a few years before Aunt Gertrude passed away, two events happened which changed everyone’s life forever. First, Aunt Gertrude was diagnosed with an incurable disease which would eventually take her life and, in the meantime, would steal her ability to reason and think logically. At the same time, Milly was in an accident which was not life threatening, but impaired her ability to make a living.
           Milly continued serving as Aunt Gertrude’s attorney in fact, even after her accident. But now, Milly realized that Aunt Gertrude didn’t really understand her bank statements any more. She didn’t fully comprehend everything she was reading or listening to. And, Aunt Gertrude had over $400,000 in the bank! Milly, because of her injuries, needed money. Milly concocted an idea, and its effects are still being felt by Aunt Gertrude’s family.
           Milly took Aunt Gertrude to her attorney (ie, to Milly’s attorney, not Aunt Gertrude’s attorney) to execute two documents: A last will and testament and a power of attorney. Milly appointed herself the power of attorney, this time granting herself the power to make gifts to, what do you know, herself with Aunt Gertrude’s money. The Will left all of Aunt Gertrude’s estate and money to, what a coincidence,  herself again!
           Milly spent the next two years systematically caring for Aunt Gertrude’s needs with Aunt Gertrude’s money as well as writing herself checks and depositing them into her own account. When Aunt Gertrude died, there was barely enough left to bury her.
           This may sound like a cheap dime-store detective novel, but it happens every day! If you or someone you know is being cared for by an attorney in fact, commonly referred to as a ‘power of attorney,’ take time to look in on them. Both. The principal (the person being helped) and the agent (the attorney in fact). In most power of attorney documents, there is no oversight built in.

At Mateya Law Firm, we have worked to create an automatic oversight in the power of attorney document. We can help you avoid situations like the dear departed Aunt Gertrude.  Feel free to contact us, we welcome comments and questions.

Power of Attorney: Oversight 2

The problem inherent when appointing someone as your attorney in fact (through the power of attorney document) is oversight. Who is watching the person who you have appointed as your attorney in fact?  And if you are saying “Why, my niece is my ‘power of attorney.’ She would never do anything that would cause me harm.” If you’ve just had this thought, you need to go back to the beginning of this blog and review some of the things that my fictional character “Milly” has done to her “Aunt Gertrude.”

These characters are fictional, but I have personally witnessed everything I have written about in this blog. It’s like the old Dragnet TV show. . .”the names have been changed to protect the innocent.” Real people, usually seniors, have these real problems with the power of attorney document every day.

A simple addition to the generic power of attorney document can create a duty for your attorney in fact to report his or her actions to an independent third party. The advantages are many.

First, if your attorney in fact, let’s use Niece Milly, is purchasing cat food, a cat box, and paying vet bills from Aunt Gertrude’s account as her attorney in fact, and Aunt Gertrude does not own a cat, that’s a problem. When this purchase is reported to the independent third-party, that person will question Milly about the expense and either require her to reimburse Aunt Gertrude or take the appropriate action, including legal action which can be both civil and criminal.

Second, suppose Milly is acting appropriately towards Aunt Gertrude and each of the actions she takes and bills she pays are, indeed, for the benefit of Aunt Gertrude. If she reports to an independent third party, and that person reviews the actions and finds them to be appropriate, Niece Milly now has someone to call on to prove that she has acted appropriately in case anyone accuses her of wrongdoing.

I will explore this subject further in our next post. Thank you to all of you who have been following our blogs. Keep your questions coming, and if I may use your question publicly, please let me know so that I can share the information with everyone.