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Another POA Question

Discussion in 'Power of Attorney & Living Wills' started by Adverse, Oct 12, 2021.

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  1. Adverse

    Adverse Law Topic Starter Member

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    Jurisdiction:
    Missouri
    First, Yes, we will be consulting an attorney in this matter, but, just for curiosity . . . . would it be appropriate if the attorney who drew up a revocable living trust, healthcare POA and durable general POA for an elderly lady, all of which granted power upon signing to the named attorney-in-fact, and both the trust attorney and the financial advisor to the elderly lady (who took her to the Trust Attorney), signed and witnessed the documents, did not notify the person named attorney-in-fact.

    The financial advisor continued to be the person controlling the financial accounts, converting previous investments to products he sold, and also made healthcare decisions, for more than four years, until the health of the elderly lady declined to a dire level. At that time, after both the financial advisor and Trust Attorney first said they knew of the documents, but not the specifics, they "found" the documents, and notified the attorney-in-fact, having deprived her of four-and-a-half years when she should have been the one exercising those powers.

    Sorry, verbose.
     
  2. Zigner

    Zigner Well-Known Member

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    It might be appropriate, or it might not be. There is no way that anyone (here or elsewhere) could give a reasonable answer, or even a reasonable guess, without reviewing all of the relevant documents and other facts. You will need to talk to that attorney that you referred to.
     
  3. zddoodah

    zddoodah Well-Known Member

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    It would not be inappropriate. The settlor of the trust/principal under the POAs would typically notify the attorney-in-fact.

    Of course, it's possible that facts not included in your post might make it appropriate for the lawyer to provide such notification.
     
  4. Adverse

    Adverse Law Topic Starter Member

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    I've been on this forum for 19 years, and I'm amazed that the first reply is invariably to contact an attorney. Sorta makes me wonder what a legal forum is for.

    As for the second reply, suggesting you might need more information, I've got plenty of that. What more would you like to know?

    For what it's worth, I'd have to look, but I likely came to this forum 20 years ago because my elderly Dad's financial advisor did do inappropriate things, ran him around town converting his CD's into cash (with early redemption penalties), churning his accounts with worthless dot-com stock purchases, and, eventually, just writing himself checks. $400,000, and I did the forensic accounting for 1989-2002 to document. Creep pleaded guilty to 1st Degree Theft.

    Then I spent 15 years making sure the Creep paid the restitution.

    So, when I see elderly person, financial advisor, trust attorney picked by financial advisor, converting all previous funds to financial products sold by the financial advisor, and failure to inform the attorney-in-fact, it's a little smelly.

    Thanks for understanding.
     
  5. Adverse

    Adverse Law Topic Starter Member

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    I will add this fact.

    The Trust Attorney signed the Trust document, and the financial advisor who took the elderly lady to the Trust attorney witnessed it. Same with the POA documents, and a Living Will. So, they both knew there was an attorney-in-fact, and they both knew her powers began when the documents were signed, which they both attended.

    Yet, the financial advisor continued to make the financial decisions, and, also, the healthcare decisions.

    And both claimed they knew nothing about them when the elderly lady was hospitalized four years later, and arranged for 24-hour home healthcare, before the attorney-in-fact got involved, not knowing she was attorney-in-fact.
     
  6. Zigner

    Zigner Well-Known Member

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    Based on the information you provided, it is the ONLY appropriate response.

    Besides, you already said you're going to consult with an attorney, so who really cares what us yahoos have to say?
     
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  7. zddoodah

    zddoodah Well-Known Member

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    As I explained previously, "[t]he settlor of the trust/principal under the POAs would typically notify the attorney-in-fact." Are there facts that might make this not the appropriate thing to do? For example, did the settlor/principal and the attorney have a discussion in which the settlor/principal asked the attorney to notify the attorney-in-fact? I could probably invent a dozen or so other hypothetical scenarios in which it might be appropriate for the attorney to make notification. However, I have neither the time nor the inclination to invent hypotheticals.

    Why, and in what capacity? The attorney who writes the trust document, etc. would not typically sign them unless he/she is going to be the trustee or attorney-in-fact (or is the settlor/principal).

    I'm not really sure who or what "they" and "them" are.
     
  8. Adverse

    Adverse Law Topic Starter Member

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    The Settlor signed, then the Trust Attorney signed as the Notary, then the financial advisor signed as a witness.

    "They" and "them" are the financial advisor and the Trust Attorney.

    A little different angle, is it appropriate for a financial advisor to continue being the sole person tp control a Settlor's finances, and make Health Care decisions for four years after he knows the Settlor has appointed an attorney-in-fact, because he witnesses that?
     
  9. Zigner

    Zigner Well-Known Member

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    It might be - it might not be. That would be a great question to ask the attorney that you have already stated will be reviewing the matter.
     
  10. Adverse

    Adverse Law Topic Starter Member

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    I know this will just muddy the water, but there are some very strange distributions at death in the Trust document, no family members, not even the attorney-in-fact, who is the Settlor's nearest relative.

    The attorney-in-fact is waiting until she has access to the financial accounts, to see if there are any TODs or other beneficiary designations. Assistance from the financial advisor, who controls at least three bank accounts and four investment accounts, approaching seven figures, has been less than stellar.
     
  11. Zigner

    Zigner Well-Known Member

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    Even YOU don't have the the information you need.
    Talk to the professionals - really.
     
  12. Adverse

    Adverse Law Topic Starter Member

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    Yeah. When YOU don't have all the information YOU need, YOU seek advice.

    Back to the question, "If the only advice given on a law forum is Contact an Attorney, why have a forum?"
     
  13. Zigner

    Zigner Well-Known Member

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    Sure, but you don't whine when told that you need to speak to a professional who can review all of the information.

    Since the assumption upon which your question is based is incorrect, I see no use in even answering.
     
  14. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Because many of the people that ask questions have a situation that doesn't really need a lawyer or they have and are capable of communicating the information needed for an informed answer.
     
  15. Adverse

    Adverse Law Topic Starter Member

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    Yet you did.

    Since you indicated in your first reply that you did not intend to be of assistance, why do you persist? If you're not going to help, just don't. Any more than that seems very unfriendly, and, over 20 years here, I found it may discourage other regulars who like to help.

    Why do I persist, which you define as whining? Because there are people on the internet, even on this forum, who do help.
     
  16. Zigner

    Zigner Well-Known Member

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    You're absolutely right. Pounding my head against a wall trying to make you understand something is obviously useless. Best of luck to you - have a magical day!
     
  17. Adverse

    Adverse Law Topic Starter Member

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    There is never a need to attack another poster, his or her opinion, or posting style.

    It appears a number of posters are attacking the poster, please don't do that.

    It's okay to disagree.

    Post your opinion, but don't attack another person's opinion.

    Besides, no one here has any real authority to make judicial rulings on this forum.

    This is NOT a court of law.

    We are all simply posting our opinions, ideas, and beliefs.

    Remember, laws do get overturned daily.

    Post your opinion, don't challenge another person's viewpoint or opinion.

    You might occasionally see incorrect information.

    It's simply another person's point of view.

    If you do notice incorrect advice (ie...it's okay for people to marry goats, or as long as you eat the candy bar before leaving the store, it's not considered shoplifting), just post what you believe to be the CORRECT advice.

    What I'm trying to say, is please refrain from attacking a person, or their ideas.

    It's better to refute the idea, and simply mosey along.

    Please, let's all try to remain civil.

    Thank you for your interest in the forum and for your contributions.

    To those seeking information, or clarification on this forum, your best legal advice is derived from a licensed attorney in the jurisdiction where you're having a dispute.

    That said, we're happy to offer our posters ideas and tidbits of information for you to use as you attempt to resolve your legal issues.

    (Army Judge, June 2, 2014)
     
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  18. zddoodah

    zddoodah Well-Known Member

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    Just because one witnesses a document doesn't mean one knows the contents of a document. I signed something last week. My signature was notarized and witnessed by two people other than the notary, and I can assure you that none of the three knew the contents of the document.

    Also, just because Person A executes a POA that makes Person B the attorney-in-fact doesn't necessarily mean it is improper for Person C to do things that happen to be within the scope of the POA.
     
  19. Zigner

    Zigner Well-Known Member

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    In my state, as a notary, I am not required to know the details of the documents that I am notarizing. I am only required to ensure that they appear to be complete.
     
  20. adjusterjack

    adjusterjack Super Moderator

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    Thread's getting out of hand.

    Closed.
     

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