According to the American Bar Association Commission on Law and Aging, too many criminal justice professionals lack awareness in the role they can play in holding offenders accountable. An agent who violates the duty owed to the principal may have committee one or more crimes. The agent may have violated state and federal laws, including laws
Recent changes were made to Pennsylvania’s power of attorney statute by Act 95 which was enacted in 2014 and amended Title 20, Chapter 56 of the PEF Code. All of the Act’s provisions have been effective since January 1, 2015.
PEF Code Section 5601.3(d)(1) provides that an agent shall not be required to disclose receipts…
The Springfield, Illinois State Journal-Register reports:
"Sandra Gayle, 65, of Springfield was convicted of financial exploitation of the elderly and financial exploitation of a person with a disability. A Sangamon County jury deliberated a little more than an hour Friday before returning the verdict.
Prosecutors introduced testimony over the course of the four-day trial to…
Neil Hendershot has an excellent post about POA Abuse here which includes the research report "Power of Attorney Abuse: What States Can Do About It."
The most egregious abuse is where the agent simply takes (that is, steals) the principal’s money for is or her own purposes. But there are many other type of…
In a decision filed April 17, 2008, the Pennsylvania Superior Court turned what we know about wills and joint property on its head. In In re Estate of Amelia J. Piet, the court ruled that joint accounts did not pass to the surviving joint owner because the accounts were made joint after the execution …
And stay out of trouble!
More and more agents are being asked to account for their actions and more and more litigaiton is aimed at agents who abuse their powers, especially by making gifts to themseles. Learn how to do it right and stay out of trouble.
When you agree to serve as attorney-in-fact under…
Appointment of a Legal Guardian
If an individual lacks the mental capacity necessary to make rational choices, there are two ways recognized by the law for proving a substitute decision maker: (1) the individual, while he was still competent, designated someone to be their agent, also known as an attorney-in-fact, by signing a power of attorney, or (2) the state, acting through the courts, may appoint a substitute decision maker known as a guardian (also sometimes called a “conservator”), for the incapacitated individual.
Power of Attorney
A "power of attorney" is a document which is signed by an individual (the "principal") appointing another person or persons (called the "attorney-in-fact" or "agent") to act for and on behalf of the principal. If the power of attorney authorizes the agent to act for the principal in almost all circumstances, it is called a "general" power of attorney. If the power of attorney is effective even if the principal is disabled or incompetent, it is called a "durable" power of attorney.
A person executing a durable general power of attorney naming a husband, wife, child, or other family member as attorney-in-fact authorizes that family member to manage his or her financial and personal affairs even after incapacity, avoiding the need for any guardianship.
Spouse Has No Legal Authority
Just because you are married does not give you legal authority over the property and person of your spouse. It is absolutely essential that you give your spouse, or some other person you trust, power of attorney. If your spouse becomes incapacitated and you don’t hold his or her power of attorney, you cannot sell the home you own jointly, cannot make withdrawals from your spouse’s IRA or other retirement plan, and cannot act for your spouse in any other legal capacity. If you don’t have a power of attorney, the only other alternative is a court appointed guardian.
The court procedure is termed a “guardianship” in Pennsylvania, In some other states, the procedure is referred to as a “conservatorship.” The individual for whom a guardian has been appointed is called a “ward.” Sometimes the ward is referred to as an “incapacitated person,” which has replaced the old-fashioned and offensive nomenclature of an “incompetent person.”…
Congratulations to Attorney Kendra McGuire on her win in In re: Weidner, 2007 WL 4555334. The PA Supreme Court struck down the Superior Court’s restrictions on agents acting under powers of attorney and limitations on power of attorney documents. See Kendra’s commentary and analysis by clicking here. In her words:
"Attempts to interpret
Thank you to Stephan Worrall for sharing this Non Sequitor cartoon:
Click here for the Estate lawyer’s version of Little Red Riding Hood.