+ Reply to Thread
Results 1 to 5 of 5
  1. #1
    bronco1992 Guest

    durable power of attorney

    What is the name of your state? Florida

    Family member has durable power of attorney for an elderly relative. Family member has spent all of elderly relative's life savings on personal life style. Once the cash ($200,000) was depleted, elderly relative was put in nursing home on Medicaid. Recently elderly relative received rather large inheritance. Can power of attorney be challenged to prevent a reoccurance of mismanagement of elderly persons assets?

  2. #2
    coosi Guest

    5. Are there remedies for financial abuse?

    The best remedy is to prevent the abuse by carefully choosing trustworthy people to act as agents, successor trustees, or conservators when preparing estate planning documents. However, if you believe that a person already designated is not acting in the your best interests, you can amend or revoke a power of attorney or revocable trust. You can demand an accounting. If there is evidence of mismanagement, the agent can be required to make restitution to you. Victims can seek assistance from law enforcement or file a civil lawsuit. Punitive damages are available if there is evidence of oppression, fraud, or malice.

    6. Who may bring an action?

    The victim, elder’s conservator, the victim’s spouse or agent acting under a durable power of attorney, other relative, Public Guardian, or an “interested person.”

    Is the elderly relative "competent"?

    Last edited by coosi; 09-19-2003 at 09:49 PM.
  3. #3
    bronco1992 Guest
    Elderly relative has recently been declared incompetent. Elderly relative was competent at the time the durable power of attorney was obtained. Basically elderly relative trusted the person to whom she gave the power of attorney to. That person proved to be unreliable and now elderly person is incompentent to change it or realize that her assets are gone. We, the other relatives, are at a loss as what to do to protect the elderly incompetent relative's now obtained inheritance.

  4. #4
    hexeliebe Guest
    A power of attorney is different than petitioning the courts for a conservator of your elderly relative's estate.

    Go see an attorney first thing monday morning. If you also know the executor who is handling the inheritance, it might be a good idea to inform him/her that the family will soon be challenging the standing of the POW.

    I don't think, under the circumstances, that an executor will want to get mixed up in a family fight and may postpone awarding the inheritance until the matter has been resolved.

  5. #5
    coosi Guest

    When does the attorney-in-fact's authority under a Durable Power of Attorney terminate?
    The authority of the attorney-in-fact of a Durable Power of Attorney automatically ends when one of three things happens: (1) the principal dies; (2) the principal revokes the Power of Attorney, or (3) when a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force. In any of these three instances, the Durable Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as attorney-in-fact, he or she is acting without authority. The power to make health care decisions, however, is not terminated when a court determines that the principal is totally or partially incapacitated unless the court specifically terminates this power.

    What is the procedure for a principal to revoke a Power of Attorney?
    Written notice must be served on the attorney-in-fact and any other party who might rely on the power. The notice must be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with your lawyer to be sure proper procedures are followed.

    When does a general Power of Attorney terminate?
    In addition to the three events detailed above, a general (non-durable) Power of Attorney terminates when the principal becomes incapacitated. If the principal of a non-durable power of attorney is believed to be incapacitated, then the attorney-in-fact should consult with his or her lawyer before exercising any further powers on behalf of the principal.

    Court proceedings were filed to appoint a guardian for the principal or to determine whether the principal is incapacitated. How does this affect the Power of Attorney?
    If a court proceeding to determine the principal's incapacity has been filed or if someone is seeking to appoint a guardian for the principal, the Durable Power of Attorney is automatically suspended and an attorney-in-fact must not continue to act. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power.

    Authority as attorney-in-fact has been suspended because guardianship proceedings are pending for the principal. Now there is an emergency but there is no guardian and no attorney-in-fact to do something. What now?
    The attorney-in-fact may ask the court for special permission to take care of the emergency even though the Power of Attorney remains otherwise suspended. Contact your lawyer.

    What is "fiduciary responsibility?"
    An attorney-in-fact is a fiduciary and as such has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the attorney-in-fact to exercise reasonable care and caution in managing the assets of the principal. The attorney-in-fact must apply this standard to the overall investments and not to one specific asset. If an attorney-in-fact possesses special financial skills or expertise, he or she has an obligation to use those skills. The attorney-in-fact should keep careful records. Everything the attorney-in- fact does for the principal should be written down, and the attorney-in-fact should keep all receipts and copies of all correspondence, and consider logging phone calls so if the attorney-in-fact is questioned, records are available.

    Florida Call-a-Law: A service of the Florida Bar, Florida Call-a Law is a collection of recorded messages that can be accessed by a touch-tone telephone. The phone number to call is (850) 561-1200. A menu of choices is available or you can ask for tape number 1144 which explains how people can protect their estates if they become sick or disabled. The information on Powers of Attorney is very brief but the service offers good advice on related issues all for the cost of the phone call.

    I see Hex has already answered with experience. The only advice I offer is based on my research. This is very good information from the Florida Bar.

    Good luck...

    Last edited by coosi; 09-19-2003 at 10:33 PM.
+ Reply to Thread

Similar Threads

  1. durable power of attorney
    By sprecher48 in forum Elder Law, Powers of Attorney, Living Wills (Advance Health Care Directives)
    Replies: 1
    Last Post: 10-09-2005, 08:20 AM
  2. Durable Power of Attorney
    By Maggie331 in forum Wills, Trusts and Estate Planning
    Replies: 1
    Last Post: 11-24-2003, 12:48 PM
  3. Durable power of attorney
    By boatnick in forum Wills, Trusts and Estate Planning
    Replies: 1
    Last Post: 09-26-2001, 11:20 AM
  4. durable power of attorney
    By justcurious in forum Wills, Trusts and Estate Planning
    Replies: 0
    Last Post: 05-06-2001, 11:45 PM
  5. Durable Power of Attorney
    By Jjohnson3 in forum Wills, Trusts and Estate Planning
    Replies: 1
    Last Post: 10-01-2000, 10:56 AM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts

© Since 1995 Advice Company, All Rights Reserved

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.