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The situation is this ... about 5 years ago, my practically illiterate 76
year-old father,
who was diagnosed with Parkinson's and prescribed medication not long (at the
time),
was creating havoc (attempting suicide, making a mess of the house,
throwing temper tantrums, etc.) at home. After a period of this daily
craziness,
we (my mom, 2nd brother and myself) tried to bring my father in to
get a psychiatric evaluation as suggested by the physicians who
attended to my father when he attempted suicide. The physicians said that
the behavior may be due to the medication. My father objected to
the evaluation and contacted his eldest son, who doesn't get along with
mom and hasn't been around the family for close to a decade, to
check him out of the hospital. Not long after leaving the hospital,
my father was placed in an elder care home.
The eldest son took advantage of the situation and
somehow got my father to agree to divorce my mom after
~50 years of marriage so that he can gain control of my father and his assets.
During and since the divorce to my father's recent death, my eldest brother
would not
allow any other family member near my father for fear that he may lose control
of
my father. He was also able to get my father to give him Power of Attorney.
My guess is that he was probably able to get my father to draw up the Will in
his favor. Again, my father is practically illiterate and is not aware of
legal matters at all.
Since the eldest son has POA, does that mean that he can
take everything that belonged to my father leaving nothing for
other family members (which I believe to be his intentions)?
Is there anything that can be done about this extreme abuse of power?
Thanks in advance
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In article <h2fbv091d943vu31b97opglh8e8li0gcdo@4ax.com>,
"Lin" <lin@no_thanks.com> wrote:
Since the eldest son has POA, does that mean that he can
take everything that belonged to my father leaving nothing for
other family members (which I believe to be his intentions)?
Is there anything that can be done about this extreme abuse of power?
The person who has the power of attorney for another can make
any decision they want to for that person, within the limits
granted in the power of attorney document. You still may have
some recourse. It appears that your father was acting irrationally
during the time when he signed this document. You may be able
to argue in court that your father was not mentally sound when
he signed the POA, so it should be invalidated by the court.
You will need a family lawyer to pursue this action.
-john-
--
======================================================================
John A. Weeks III 952-432-2708 john@johnweeks.com
Newave Communications http://www.johnweeks.com
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John A. Weeks III wrote:
In article <h2fbv091d943vu31b97opglh8e8li0gcdo@4ax.com>,
"Lin" <lin@no_thanks.com> wrote:
The person who has the power of attorney for another can make
any decision they want to for that person, within the limits
granted in the power of attorney document.
The "standard" power of attorney form does not allow the
attorney-in-fact to give himself more than the annual gift
tax exclusion. I don't know whether that is a requirement
in law, or not, but both stationery store forms and a
durable POA drawn up so that my wife could take care
of her mother's affairs has that provision.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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Arthur L. Rubin wrote:
John A. Weeks III wrote:
The "standard" power of attorney form does not allow the
attorney-in-fact to give himself more than the annual gift
tax exclusion.
I've never seen a "standard" power of attorney that gave the holder
the power to make any gifts whatsoever. In fact, the law states that
the holder of a power of attorney is not permitted to make gifts,
either to himself or anyone else, unless specifically permitted in the
document that creates the power.
In addition, the holder of the power has a fiduciary duty not to do
anything that will injure the creator of the power or to benefit
himself at the expense of the holder of the power.
Stu
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Stuart Bronstein wrote:
Arthur L. Rubin wrote:
I've never seen a "standard" power of attorney that gave the holder
the power to make any gifts whatsoever. In fact, the law states that
the holder of a power of attorney is not permitted to make gifts,
either to himself or anyone else, unless specifically permitted in the
document that creates the power.
In the case of a durable POA for someone who is expected to become
legally incompetent, it is "standard" for the POA to allow nominal
gifts. The particular agreements allow arbitrary gifts, either made
from the trust or under the POA, but no more than the IRS limit may
be given to the trustee. Gifts in excess of the limit can be given
to other parties.
I recall seeing the limitation on gifts in the stationery store
form, but there's also a prohibition on gifts.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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nospam@isp.com wrote:
- the also separate and even more basic (commonly
applicable state law) prohibition, (VERY) strongly presumed
to apply in all fifty U.S. states, against an agent's
self-dealing with the principal's assets (so that, also contrary
to Mr. Rubin's apparent belief otherwise, an agent's invoking
a POA as the authority to give a "gift" to the agent personally
of the principal's funds would, and should, be very strictly
scrutinized if such a transaction were discovered and then
disputed).
I withdraw my claim that it's "standard" -- however, this specific
POA and "living trust" agreement specifically allow the
attorney-in-fact and trustee to make gifts, provided only that the
gift tax limit is not exceeded on gifts to the attorney-in-fact/trustee.
I suppose it's possible that the clause is void, or limited
(in the case of the POA) to situations in which the intent
of the trustor is clear, but the clause is in the agreement.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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Arthur L. Rubin wrote:
I withdraw my claim that it's "standard" -- however, this
specific POA and "living trust" agreement specifically allow
the attorney-in-fact and trustee to make gifts, provided only
that the gift tax limit is not exceeded on gifts to the
attorney-in-fact/trustee.
I suppose it's possible that the clause is void, or limited
(in the case of the POA) to situations in which the intent
of the trustor is clear, but the clause is in the agreement.
Actually, the clause (at least as far as I'm aware) is completely
valid. But gift giving is one of those things that is considered so
personal that it won't be allowed unless it is specifically stated in
the POA or trust.
Stu
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