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    The Lawletter Blog

    ELDER LAW: Standing to Sue the Attorney-in-Fact Named in a Power-of-Attorney Document

    Posted by Gale Burns on Mon, Apr 9, 2012 @ 13:04 PM

    The Lawletter Vol 36 No 10

    Brad Pettit, Senior Attorney, National Legal Research Group

    As the percentage of Americans who are over the age of 70 continues to rise, there has been a corresponding increase in the risk of financial abuse of elderly persons.  Accordingly, state legislatures have been examining ways to protect senior citizens from fraud and other misconduct by parties or persons to whom elderly persons often entrust their financial affairs.

    Several states have adopted the Uniform Power of Attorney Act ("U.P.A.A." or the "Act"), see Colo. Rev. Stat. §§ 15‑14‑701 to ‑745; Idaho Code Ann. §§ 15‑12‑101 to ‑403; Maine Rev. Stat. Ann. §§ 5‑901 to ‑964; Md. Code Ann., Est. & Trusts §§ 17‑101 to ‑204; Nev. Rev. Stat. §§ 162A.010–.860; N.M. Stat. §§ 46B‑1‑101 to ‑403; V.I. Code Ann. tit. 15, §§ 5‑501 to ‑523; Va. Code Ann. §§ 26‑71.01 to ‑74.03; and Wis. Stat. §§ 244.01–.64, or are in the process of adopting the Act, several provisions of which are aimed at making it easier for family members and others who have genuine concerns about the welfare of an elderly person to seek judicial redress against a fiduciary who is suspected to have abused his or her powers over an elderly person's financial affairs.  For example, one section of the Act sets forth a broad range of parties or persons who have standing to sue an attorney-in-fact in order to protect the interests and rights of the principal under a power-of-attorney document.  Those parties include the principal him- or herself or an agent; a fiduciary acting for the principal; someone authorized to make health‑care decisions for the principal; the principal's spouse, parent, or descendant; a presumptive heir or named beneficiary; a governmental agency having regulatory authority to protect the welfare of the principal; the principal's caregiver; and a person asked to accept the power of attorney.  U.P.A.A. § 116(a) (Westlaw current through 2010 Annual Meeting of the Nat'l Conf. of Comm'rs on Unif. State Laws & 2011 elec. pocket pt.).

    According to the comment to section 116, "[t]he primary purpose of [section 116] is to protect vulnerable or incapacitated principals against financial abuse."  Id. § 116 cmt.  The comment lists specific statutes as examples of legislation that either tracks the language of section 116(a) or contains similar provisions that give standing to a broad range of parties or persons who may bring an action against an attorney-in-fact in order to protect the principal.  See Cal. Prob. Code § 4540; Colo. Rev. Stat. § 15‑14‑609; 755 Ill. Comp. Stat. 45/2‑10; Ind. Code § 30‑5‑3‑5; Kan. Stat. Ann. § 58‑662; Mo. Rev. Stat. § 404.727; N.H. Rev. Stat. Ann. § 506:7; Wash. Rev. Code § 11.94.100; Wis. Stat. § 243.07(6r).  For further discussion of the problems associated with the abuse of power-of-attorney documents, see J. Rhein, No One in Charge:  Durable Powers of Attorney and the Failure to Protect Incapacitated Principals, 17 Elder L.J. 165 (2009), cited in U.P.A.A. § 116 cmt.

    By adopting statutes that give standing to a wide variety of parties or persons who can seek the aid of a court in protecting the interests and rights of the principal under a power-of-attorney instrument, states have recognized the problems associated with limiting the standing to sue an attorney-in-fact to the principal, the principal's guardian, or the principal's estate.  In short, section 116(a) represents a big step toward protecting elderly or incapacitated persons from unscrupulous conduct by attorneys-in-fact who are supposed to act solely in the principals' best interests.

    Topics: legal research, The Lawletter Vol 36 No 10, Brad Pettit, elder law, financial abuse of elderly persons, Uniform Power of Attorney Act, ability to seek judicial redress for financial abu, § 16 lists parties having standing to sue attorney

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