Power of Attorney / Attorney in Fact Responsibilities and Rights – Slides 13, 14, 15 and 16

I seldom see discussions about power of attorney, principal, and attorney-in-fact responsibilities and rights. I am providing some of my power of attorney presentation slides. Click on the following links for my three prior posts containing my slide numbers 3, 4, and 5 https://wp.me/p1wbl8-tK, slide numbers 6, 7, and 8 https://wp.me/p1wbl8-u5, and slide numbers 9, 10, 11, and 12 https://wp.me/p1wbl8-uj. Below in this post I have provided slide numbers 13, 14, 15, and 16, which are the remaining slides that I am posting.

You should note, obviously these slides are a summary of what can be a complicated area of law and specific facts, they are not a solicitation for services inside or outside of California, and they do not pertain to any particular situation or to you and your situation. You need to consult with an appropriate professional for your specific situation.

Best to you, Dave Tate, Esq. (California)

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Power of Attorney / Attorney in Fact Responsibilities and Rights – Slides 9, 10, 11 and 12

I seldom see discussions about power of attorney, principal, and attorney-in-fact responsibilities and rights. I am providing some of my power of attorney presentation slides. Click on the following links for my two prior posts containing my slide numbers 3, 4, and 5 https://wp.me/p1wbl8-tK and slide numbers 6, 7, and 8 https://wp.me/p1wbl8-u5. Below in this post I have provided slide numbers 9, 10, 11, and 12. Slide numbers 13, 14, 15, and 16 will be provided in a subsequent post.

You should note, obviously these slides are a summary of what can be a complicated area of law and specific facts, they are not a solicitation for services inside or outside of California, and they do not pertain to any particular situation or to you and your situation. You need to consult with an appropriate professional for your specific situation.

Best to you, Dave Tate, Esq. (California)

Blogs:

Power of Attorney / Attorney in Fact Responsibilities and Rights – Slides 6, 7 and 8

I seldom see discussions about power of attorney, principal, and attorney-in-fact responsibilities and rights. I am providing some of my power of attorney presentation slides. Click on the following link for my prior post with my slide numbers 3, 4, and 5 https://wp.me/p1wbl8-tK. Below in this post I have provided slide numbers 6, 7, and 8. Additional slides will be provided in subsequent posts.

You should note, obviously these slides are a summary of what can be a complicated area of law and specific facts, they are not a solicitation for services inside or outside of California, and they do not pertain to any particular situation or to you and your situation. You need to consult with an appropriate professional for your specific situation.

Best to you, Dave Tate, Esq. (California)

Blogs:

 

 

Power of Attorney / Attorney in Fact Responsibilities and Rights – Slides 3, 4 and 5

I seldom see discussions about power of attorney, principal, and attorney-in-fact responsibilities and rights. In this post and in subsequent posts I will be providing some of my power of attorney presentation slides. Below in this post I have provided screenshots of my slide numbers 3, 4 and 5.

You should note, obviously these slides are a summary of what can be a complicated area of law and specific facts, they are not a solicitation for services inside or outside of California, and they do not pertain to any particular situation or to you and your situation. You need to consult with an appropriate professional for your specific situation.

Best to you, Dave Tate, Esq. (California)

Blogs:

 

 

Who Can File A Petition Relating To A Power Of Attorney – Almost Anyone, Including Any Interested Person Or Friend

If you have a question or dispute about how a power of attorney operates, or how it should be or is being used, the California Probate Code allows almost anyone to file a petition with the Court for instructions or other remedies. See the provisions of Probate Code Sections 4540 and 4541 below.

Also note, there are powers of attorney for financial and asset management, and powers of attorney for health care and daily living – although some of the provisions are similar, there are important differences. And, perhaps outside of common knowledge, it is not always clear when, for how long, and for what decision making a person can become and becomes an attorney in fact, what decisions can be made, what decisions are legally prudent, and what people and resources, including the principal, might be or in circumstances should be or must be consulted about the matter at hand and possible options for decision making. 

California Probate Code Section 4540 provides as follows:

Subject to Section 4503, a petition may be filed under this part by any of the following persons:

(a) The attorney-in-fact.

(b) The principal.

(c) The spouse of the principal.

(d) A relative of the principal.

(e) The conservator of the person or estate of the principal.

(f) The court investigator, described in Section 1454, of the county where the power of attorney was executed or where the principal resides.

(g) The public guardian of the county where the power of attorney was executed or where the principal resides.

(h) The personal representative or trustee of the principal’s estate.

(i) The principal’s successor in interest.

(j) A person who is requested in writing by an attorney-in-fact to take action.

(k) Any other interested person or friend of the principal.

California Probate Code Section 4541 provides as follows:

A petition may be filed under this part for any one or more of the following purposes:

(a) Determining whether the power of attorney is in effect or has terminated.

(b) Passing on the acts or proposed acts of the attorney-in-fact, including approval of authority to disobey the principal’s instructions pursuant to subdivision (b) of Section 4234.

(c) Compelling the attorney-in-fact to submit the attorney-in-fact’s accounts or report the attorney-in-fact’s acts as attorney-in-fact to the principal, the spouse of the principal, the conservator of the person or the estate of the principal, or to any other person required by the court in its discretion, if the attorney-in-fact has failed to submit an accounting or report within 60 days after written request from the person filing the petition.

(d) Declaring that the authority of the attorney-in-fact is revoked on a determination by the court of all of the following:

(1) The attorney-in-fact has violated or is unfit to perform the fiduciary duties under the power of attorney.

(2) At the time of the determination by the court, the principal lacks the capacity to give or to revoke a power of attorney.

(3) The revocation of the attorney-in-fact’s authority is in the best interest of the principal or the principal’s estate.

(e) Approving the resignation of the attorney-in-fact:

(1) If the attorney-in-fact is subject to a duty to act under Section 4230, the court may approve the resignation, subject to any orders the court determines are necessary to protect the principal’s interests.

(2) If the attorney-in-fact is not subject to a duty to act under Section 4230, the court shall approve the resignation, subject to the court’s discretion to require the attorney-in-fact to give notice to other interested persons.

(f) Compelling a third person to honor the authority of an attorney-in-fact.

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Probate Court Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business and Business-Related Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; and Nonprofit Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets
  • M&A disputes
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, voting, etc., disputes
  • Buy-sell disputes
  • Funding and share dilution disputes
  • Accounting, lost profits, and royalty disputes
  • Access to corporate and business records disputes
  • Employee, employer and workplace disputes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations and Governance

  • Corporate and business internal investigations
  • Board, audit committee and special committee governance and processes, disputes, conflicts of interest, independence, etc.

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Discussions About Powers of Attorney – Responsibilities and Rights (Part 1)

I am writing a couple of posts discussing powers of attorney under the California Probate Code. One of my current cases involves responsibilities and rights under financial and healthcare powers of attorney. A prior case in litigation involved whether or not to disconnect mom from medical equipment that was believed to be keeping her alive. Some of the discussion in these posts will be from a talk that I presented for the Professional Fiduciary Association of California.

Responsibilities and rights under a power of attorney are determined by the wording of the power of attorney itself, statutes, case law, and the facts and circumstances of the situation. These can be complicated issues. Although the wording of the power of attorney is extremely important, and that wording should be where the determination of responsibilities and rights starts, as you will see in these posts, the wording of the power of attorney does not give the complete answer. There are lengthy chapters and books written on these topics – in this and a couple of following posts I will be discussing some of the statutory provisions that govern responsibilities and rights under powers of attorneys under the California Probate Code.

Under the California Probate Code powers of attorney are discussed at Probate Code §§4000-4545.

Thus, for example, California Probate Code §§4050 and 4051 provide as follows:

Probate Section 4050:

(a) This division applies to the following:

(1) Durable powers of attorney, other than powers of attorney for health care governed by Division 4.7 (commencing with Section 4600).

(2) Statutory form powers of attorney under Part 3 (commencing with Section 4400).

(3) Any other power of attorney that incorporates or refers to this division or the provisions of this division.

(b) This division does not apply to the following:

(1) A power of attorney to the extent that the authority of the attorney-in-fact is coupled with an interest in the subject of the power of attorney.

(2) Reciprocal or interinsurance exchanges and their contracts, subscribers, attorneys-in-fact, agents, and representatives.

(3) A proxy given by an attorney-in-fact to another person to exercise voting rights.

(c) This division is not intended to affect the validity of any instrument or arrangement that is not described in subdivision (a).

Probate Section 4051:

Except where this division provides a specific rule, the general law of agency, including Article 2 (commencing with Section 2019) of Chapter 2 of Title 6 of, and Title 9 (commencing with Section 2295) of, Part 4 of Division 3 of the Civil Code, applies to powers of attorney.

In relevant part, California Civil Code Sections 2019, 2020 and 2022 provide:

Civil Code Section 2019 – an agent must not exceed the limits of his actual authority.

Civil Code Section 2020 – an agent must use ordinary diligence and keep his or her principal informed of his or her acts.

Civil Code Section 2022 – a mere agent of an agent is not responsible as such to the principal of the latter.

Thus, whereas the power of attorney might appear to say or suggest that the attorney-in-fact has absolute authority at least in the circumstances that are listed, you can see that, nevertheless, the attorney-in-fact cannot exceed his or her actual authority, he or she has to use at least ordinary diligence unless the power of attorney states otherwise, and the attorney-in-fact must keep his or her principal informed of his or her acts. And these are themes and requirements that run throughout the statutes that more specifically discuss responsibilities and rights, and that will be discussed in future posts.

Every case and situation is different. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this website. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only. I am also the new Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

 

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Can You Stop An Aging Parent From Self-Neglect At Home – by Carolyn Rosenblatt

The following is a good discussion by Carolyn Rosenblatt, on a topic that is ongoing for many, many families – can you stop an aging parent from self-neglect at home? The link to Carolyn’s article is provided below.

When is it self-neglect or self-abuse, and what can or do you do about it?

Unless you have the cooperation of the parent (and other family members), and the needed financial, insurance coverage, and time resources, and know who to contact, the issues are even more difficult to resolve. I see many family members who are dealing with these issues in trust, power of attorney, and conservatorship situations. What are the responsibilities/duties and rights, and what options are available and can be achieved? I am also aware of one California case involving a finding of elder abuse in a situation where family members did not take action to try to remedy the situation.

These issues are or can be difficult even with cooperation and resources. To see Carolyn’s article, CLICK HERE.

Dave Tate, Esq. San Francisco and California