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Blog Update

I want to extend my apology for my absence.  We are updating our website and should be back on schedule...hopefully twice per month, for this blog.

I have lots to say, and I am looking forward to sharing with via this blog.  Until then...

Limiting the Power of Attorney

         A power of attorney document, as we have seen with Aunt Gertrude and her niece Milly, is a powerful document. Milly can do a world of good for her dear Aunt Gertrude, or she can misuse her power to enrich herself.

         What if Aunt Gertrude decides that she wants to limit Milly’s ability to act on her behalf? Suppose Aunt Gertrude is concerned that she may be tempting Milly too much by giving Milly her checkbook. What can Aunt Gertrude do?

         Aunt Gertrude can grant her niece a limited power of attorney.A limited power of attorney, as the name suggests, has some restrictions. Here are a few examples of ways in which a power of attorney document can be limited:

“This power shall not take effect unless I have been found to be incompetent by my physician.”

“My attorney in fact may not write a check or use cash from my account for more than $500.00 in a single transaction.”

“My attorney in fact may not access more than $2,000.00 in any thirty day period.”

“This power shall be in effect until I return from my vacation to Italy.”

         By limiting the actions which Milly may take, Aunt Gertrude is protecting herself. . .or at least she is limiting the damage which can be done to her finances.

We enjoy hearing from you, please keep your questions and comments coming.

Your “Power of Attorney” Did What!?!

    When we hear stories of the abuse of power of attorney document, we’re often amazed at the gall and boldness that accompany the actions of the attorney in fact (the person who is appointed on the power of attorney document). One of the main reasons that Aunt Gertrude chose her niece Milly (our two fictitious characters for purposes of this blog) as her attorney in fact was that she trusts Milly to do the right thing.
    An attorney in fact has a duty of loyalty to the person who appointed her (the principal). So Milly owes a duty of loyalty to her Aunt Gertrude. Milly’s actions have to be in favor of and for the benefit of Aunt Gertrude.  In fact, most power of attorney documents include an "agent's acknowledgement" which the agent must sign. It affirms, among other things, that the agents actions will always be for the benefit of the principal (i.e., that Milly's actions will always be for the benefit of Aunt Gertrude.
      So if Milly had not seen her Aunt Gertrude for seven years (but was still listed on her aunt's power of attorney document) and  then changed the beneficiary of Aunt Gertrude's annuity from what it was to herself, that would not be in her Aunt's best interest. In fact, it would be self dealing by Milly.
      Milly should not take such actions. Milly has to keep Aunt Gertrude's interest above her own. We have seen this exact scenario play out. It's sad. People take advantage of the weakest among us.
      Be vigilant. Help the seniors in your life. Please don't stand idly by and watch while Milly robs Aunt Gertrude blind!

What If My Attorney In Fact Moves Out Of State?

           In today’s mobile society, not too many of us stay in one place anymore. So how does that affect our choice on our power of attorney document? Your attorney-in-fact (the person you normally refer to as your ‘power of attorney’) probably lived nearby when you drafted your power of attorney document. What happens when they move away?
           Let’s apply this to Aunt Gertrude and her niece Milly (and if you don’t know who they are, back up from today’s blog and follow their adventures from earlier blogs).
           Aunt Gertrude is being helped by her niece Milly. Aunt Gertrude can still get around, but not by herself. She needs someone to drive her to appointments and take her for an occasional outing. Milly has a good heart and wants to help her Aunt Gertrude.  Most of the time.
           If Aunt Gertrude and Milly both live in the same town in Pennsylvania, there is nothing that stops Milly from functioning as the power of attorney document says she can. If Milly moves to Colorado, she still has all of the same powers and authority that she did before. In our country, we have what is known as comity between the states. Each state recognizes the laws of the other states. So Aunt Gertrude does not need to execute a new power of attorney document to allow Milly to continue as her attorney in fact just because she moved to Colorado. And Milly does not need a Colorado Power of Attorney document to continue to assist her Aunt Gertrude.
           Practically speaking, Aunt Gertrude may wish to appoint someone who lives close enough to assist her with her daily routine. Legally? The power of attorney document  crosses state lines with ease.
           Please continue to share your stories with us. We’ve heard from many of you, and we hope to have some changes coming soon which will make it easier for you to post your comments on our link. Thank you for your kind words. We’re glad that our blogs are helpful.

Bringing Power Of Attorney Abuse To Light

  You recall that in our vignettes, Aunt Gertrude has appointed her niece Milly as her attorney-in-fact through the Power Of Attorney document. With just that as a background, think of your own family and acquaintances -- Have any of you reading this ever been guilty of making any of these statements:    

• “Does Aunt Gertrude understand that she is the one in charge, not her ‘power of attorney’ [Editor’s note: the correct terminology is ‘her attorney in fact’] Milly?
• “Why does Aunt Gertrude allow Milly to take advantage of her like that?”

    Or how about these statements?

• “I am going to explain to Aunt Gertrude that she doesn’t have to allow Milly to use her car all of the time, just when they go to the store or hairdressers together.”
• “Its a shame the way Milly is taking advantage of poor Aunt Gertrude. Someone should do something about that."

    It is estimated that nearly three billion (with a “b”) dollars are being lost to financial elder abuse each year, and that number continues to grow.# We can not justify sitting by and shaking our head, saying “isn’t it a shame.” There is a time to act.

    If you see your Aunt Gertrude’s niece Milly acting like she is in charge, don’t you dare say “What a shame” and walk away. It is up to you to speak to Milly and say the same thing: “You are not in charge, Aunt Gertrude is in charge.” And if you happen to be in Aunt Gertrude’s family, you certainly can ask Milly what she is doing with the money and ask her to account for it properly. 

    If Milly is misusing Aunt Gertrude’s assets, like her car or house, you speak up to Milly and ask her plainly “What are you doing, and how does this help your Aunt Gertrude?” An attorney in fact agrees, in writing, to only take actions which are for the benefit of the principal -- in our case Aunt Gertrude. 

    You may be appalled that Milly is taking advantage of Aunt Gertrude. After today, you are part of the solution. You say something to Milly. If not, you have become part of the problem. . .

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.