When the Power Of Attorney Is Used As A Sword Instead Of A Shield

   

      Here is my synopsis of what happened to another “Aunt Gertrude,” but this time,

unfortunately, it is a sad but true example of what I have been writing. Today our paper

reported that it was a great niece.. You may agree with me that there is nothing so “great”

about this niece:

      “A woman stole more than $300,000 from her elderly aunt. In April 2010 the York County

Area Agency on Aging received a complaint that an elderly woman, who resided at the

Brunswick of Longstown personal care home was being financially exploited.”

     Let me just break in here and say “Bravo” for the nursing facility that had the guts to pick up the phone can call the Area Agency on Aging!

     “The elderly woman appointed her great-niece as her Power of Attorney (Her attorney in

fact). With complete financial control of her great aunt’s finances, she allegedly

misappropriated more than $300,000 for her own use. The great niece was arrested

on July 5 and charged with two counts of forgery, one count of theft by unlawful taking,

and one count of theft by deception. She was preliminarily arraigned before Dallastown

Magisterial District Judge Scott Laird and released after posting $25,000 straight bond. A

preliminary hearing is scheduled for Aug. 2 at 9 a.m. The charges listed above are taken

from the allegations in the court papers.”

Taken from Cumberlink.com news.

     The Power of Attorney document is designed to assist those who need a helping hand

with the routine affairs of life. Here, as is too often the case, the niece may have begun with the best intentions, but she soon learned that there was no one watching her. She had absolute

control and there was no automatic oversight built into the document.

     At Mateya Law Firm, we have worked with bankers, other lawyers, accountants, trust

officers,and financial planners to develop a very simple, automatic oversight into each new

power of attorney document we execute. The hope is to keep stories like this from happening to our clients. Please contact us if we can help you or if you have something to share.

Abusing the Power of Attorney Document in Death

           Aunt Gertrude’s power of attorney document grants her niece Milly (the attorney in fact) the power and authority to act for her as long as she (Aunt Gertrude) is still alive. Milly must use her best efforts to care for her Aunt Gertrude (the principal) and only take actions which benefit her. But the fact is the niece Millys of the world don’t always do what is best for their Aunt Gertrudes.
           Could Milly, as the attorney in fact, write a will for Aunt Gertrude which leaves everything to herself? The standard wisdom is “no.” A resounding NO! The whole idea of appointing an attorney in fact is to have a person who is looking out for the best interests of the principal. There is some discussion within the past few years that the Pennsylvania statutes do not forbid the writing of a will by an attorney in fact. There are even some who suggest that the power of attorney authorizes such broad powers that the writing of a will is included.
           The issue can be remedied easily – have the power of attorney document forbid the writing of a will by the attorney in fact. One sentence is all that is necessary.
           This simple step does not stop Niece Milly from waiting until Aunt Gertrude is in a pliable state of mind and then taking her to a new attorney who Gertrude has never met before and having her sign a will that she does not fully understand. Nor does it stop the niece from any of the hundreds of other ways which seniors endure elder abuse, including financial abuse.
           Taking the step of forbidding the attorney in fact to write a will for the principal, however, does close one more loophole.
           Please keep sharing. . . .