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Power of Attorney Provisions for You and Your Trust by Yahne Miorini, LL.M

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Power of Attorney Provisions for You and Your Trust by Yahne Miorini, LL.M Power of Attorney Provisions for You and Your Trust By Yahne Miorini, LL.M. not terminate on disability of the every state along with non- A. Definition principal.” uniform provisions. Although most statutes are brief and rely A power of attorney is an B. Use of the Power of heavily on the common law of authorization for one person to act Attorney agency, there is a great divergence on someone else’s behalf in a legal and confusion between states. In or business matter. The person The durable power of attorney addition, certain entities, such as authorized to act is the “agent” or is now widely used by Americans banks, brokerage houses, and sometimes called “attorney-in-fact” for incapacity planning as well as insurance companies have and the person granting the convenience. Without a power of arbitrarily refused powers of authorization is the “principal.” attorney, all of the assets of the attorney, requiring the principal to This is a fiduciary relationship disabled person are frozen. The execute the entity’s own power of where the agent has to act in the disabled person’s affairs will be in attorney form. best interest of the principal and complete chaos. In addition, the make decisions that are consistent American population is aging; 75 Powers of attorney confer a with decisions that the principal million baby boomers are starting great deal of authority without made for him/herself. The agent to retire. They will have diverse regular oversight or clear may be held liable for a breach of needs and some will require long standards for agent conduct. any fiduciary duty to the principal1. term care. Their preference in Advocates for older people often aging places will vary and will call the power of attorney a Under the common law, a depend on their level of income. A “license to steal.” There is no power of attorney becomes power of attorney is a simple national data on the incidence of ineffective upon the principal’s document that will help these power of attorney abuse, but adult incapacity. In 1954, the seniors in case of a temporary or protective services and criminal Commonwealth of Virginia was the permanent disability. It will also justice professionals report an first state to authorize by statute allow them to delegate a portion of explosion of financial exploitation powers of attorney to be durable. the management of their personal cases of this type. The most However, the power needs to affairs. Elderly will eventually recent analysis of compiled state expressly elect its durability. face a situation where they will adult protection services data was Usually, the following language is need assistance with the collected in 2003 and indicated used: “this power of attorney shall management of their affairs. that 20.8 percent of the reports made to state adult protective Now-a-days, the concept of services about persons age 60 or 1 Va. Code § 11-9.1 (C). durability has been adopted by older concerned financial Excerpts from teaching class, NBI 2009. All Copyrights Reserved. Power of Attorney Provisions for You and Your Trust By Yahne Miorini, LL.M. exploitation. Power of attorney reasons why it can be difficult for principal’s money has been spent abuse takes many forms. An the civil justice system to hold the and may ask for rescission, to un- agent may spend the principal’s agent liable and for the criminal do transactions conducted by the money for self-dealing purposes. justice system to hold the agent agent. In addition, the attorney We often see the agent buying a accountable. The lack of statutory may sue the agent for conversion, car for him/herself instead of clarity about agent duties poses for stealing the principal’s money paying the principal’s nursing challenges to civil litigation and or assets. Finally, the attorney may home care. The agent may exceed criminal prosecution. The agent petition the court to declare the the intended scope of authority by may have dissipated the principal’s principal to be incapacitated and making gifts when the power has assets making it impossible to appoint a guardian and/or not been granted. pursue an often costly civil conservator. With a criminal litigation against the agent. The prosecution, the agent can be Unfortunately, the abuses are victim of abuse by a power of accused of exploitation, rarely detected if the principal has attorney is aged sixty or older and embezzlement, forgery, fraud, become incapacitated because there may be able to get free civil legal larceny, money laundering, and is no monitoring of the agent’s help from a program that is funded theft. actions by a third party unless the through the Older Americans Act. principal has authorized such In Mountjoy v. Smith2, the Law enforcement officers may not monitoring in the power of Fauquier County Circuit Court that understand that power of attorney attorney. A 2009 bill on elder although the power of attorney abuse is a crime and fail to abuse was left in Commerce and granted general powers it did not investigate allegations. On the Labor Committee that would have authorize the attorney-in-fact to set other hand, prosecutors may not require any staff from financial up an estate plan for the principal. receive case referrals from adult institution who has reason to Mr. Smith had executed a durable protective services agencies, banks, believe that a client is or has been power of attorney, naming his or law enforcement agencies. exploited financially to report it to spouse as attorney-in-fact. Without Finally, there is a lack of resources the local department of social telling Mr. Smith, Mrs. Smith to prosecute these cases which can services. Financial exploitation is arranged for two separate revocable be extremely challenging and labor defined in this bill as the illegal or trust documents to be prepared, one intensive. A civil lawyer can help improper use of a person’s funds, for her and one for her husband. the principal revoke the power of property, or assets. Real estate properties previously attorney. The attorney can ask the Even if the power of attorney civil court to order that the agent 2 CL08-300, February 26, 2009, J. Parker, abuse is detected, there are several provide an accounting of how the Letter Opinion Excerpts from teaching class, NBI 2009. All Copyrights Reserved. Power of Attorney Provisions for You and Your Trust By Yahne Miorini, LL.M. held as tenant by the entirety were Virginia General Assembly. Its a low-cost, flexible, and private transferred into the trusts, thus amended bill was enacted but form of surrogate decision-making. changing ownership to tenants in contained a provision that required It provides mandatory provisions common. Mrs. Smith died. Mr. a reenactment by its 2010 session. that provide safeguards for the Smith terminated his trust and If reenacted next year, the Uniform protection of the principal, the demanded entitlements through Power of Attorney Act will be agent, and persons who are asked Mrs. Smith’s trust. The court ruled located in the Virginia Code Title to rely on the agent’s authority. It that Mr. Smith revocable trust was 26 as a new additional Chapter 7. modernizes the various areas of void with the effect of invalidating authority that can be granted to an The Uniform Law Commission the conveyance of the real agent and requires express has drafted a Uniform Power of properties to the trusts. language authorization by the Attorney Act in 2006. The states principal where certain authority In Jones, et al. v. Brant3, the of Colorado, Idaho, and New could dissipate the principal’s power of attorney contained very Mexico have already adopted it. property or alter the principal’s broad powers, including the power The Act was introduced to the estate plan. to make gifts, but lacked a specific states of Illinois, Indiana, Maine, grant of power to make a change of Maryland, Minnesota, Montana, It provides step by step prompts beneficiaries of the principal’s Nevada, Oregon, and Virginia. for designation of agents, successor certificates of deposit. The agents, and the grant of authority This Act should clarify the Supreme Court ruled that the through an optional statutory form. following topics of confusion: (1) principal sufficiently expressed the It offers clearer guidelines for the authority of multiple agents, (2) intent to change the beneficiary agent, who is often a trusted family authority of a late appointed designations under the general member. It recognizes that an fiduciary or guardian, (3) impact of provisions of the power of attorney. agent who acts with care, agent’s divorce, (4) activation of competence, and diligence for the contingent powers, (5) authority to best interest of the principal is not C. New Power of Attorney make gifts, and (6) standards of Act liable solely because he or she also agent conduct and liability. benefits from the act or has The Uniform Power of Of course, each state will conflicting interests. It permits a Attorney Act, originally drafted by modify some provisions of the Act, principal to include in the power of the Uniform Law Commission, was but it will clarify and modernize attorney an exoneration provision introduced at the last session of the state laws. The Act preserves the for the benefit of the agent. It effectiveness of durable powers as provides ways for the agent to give 3 645 S.E. 2d 312 (Va. 2007) Excerpts from teaching class, NBI 2009. All Copyrights Reserved. Power of Attorney Provisions for You and Your Trust By Yahne Miorini, LL.M. notice of resignation if the principal the Virginia Bar Association in know the result of these provisions is incapacitated.
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