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

 

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

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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

Attorney in Fact and Power of Attorney Decision Making

Surprisingly, there is very little statutory or case law discussing:

-Attorney in fact decision making under a power of attorney document;

-When the power of attorney becomes effective;

-If the principal is making the decisions;

-When is the named attorney in fact actually acting as an attorney in fact under the power of attorney;

-Is the attorney in fact a fiduciary, and if he or she is actually acting as a fiduciary, for what is he or she a fiduciary;

-Can someone be acting as a fiduciary in some situations or with respect to some issues and decisions, but at the same time not for other situations, issues and decisions (and related, the principal doesn’t necessarily lose decision making over all situations, issues and decisions, right?); and

-The specifics of whether acting as a fiduciary in a particular situation does or does not switch the burden of proof, and if it does, in what manner, to what extent, and for what events or actions is the burden of proof switched?

These are all important issues, and they are becoming more important. Cases that deal with powers of attorney or even these issues usually don’t go into detail, but many times simply find in a conclusory fashion that someone was a fiduciary so for all purposes and for all events or actions the burden of proof is shifted, and all depending on the judgment of the trier of fact which is often a single judge. I submit that this approach is way to simplistic, conclusory and lacking in critical legal analysis.

The California Probate Code provides that agency law applies to power of attorney, attorney in fact, and principal issues, unless the Probate Code contains a provision that states otherwise or that directly addresses the issue at hand. I very seldom hear discussions in court about statutes that address powers of attorney, or actions and responsibilities and decision making thereunder. The following are a couple of those statutes.

California Probate Code Section 4234 – (a) To the extent reasonably practicable under the circumstances, an attorney-in-fact has a duty to keep in regular contact with the principal, to communicate with the principal, and to follow the instructions of the principal.

California Probate Code Section 4657 – A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.

California Probate Code Section 4684 – An agent shall make a health care decision in accordance with the principal’s individual health care instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent’s determination of the principal’s best interest. In determining the principal’s best interest, the agent shall consider the principal’s personal values to the extent known to the agent.

As you can see, the attorney in fact, assuming that he or she is in fact acting under the power of attorney and as an attorney in fact for the specific situation, issue or action at hand, should be communicating with the principal about important issues and the principal’s wishes and decisions with respect to those issues. And there is or might be an actual or implied presumption that the principal has decision making capacity and is making the decision in that circumstance.

Dave Tate, Esq., San Francisco and throughout California, http://californiaestatetrust.com

 

Loss for Someone with Dementia

The following is a link to a post from Stephanie Peters’ blog titled “Loss for Someone with Dementia.” It is good for me to step back from the day-to-day legal involvement and reflect on the human aspects. And I note Stephanie’s comments about talking, or not, to someone with dementia about the loss of a spouse or other loved one. Here’s the link to Stephanie’s post, CLICK HERE.

Loss for Someone with Dementia

Is This Undue Influence – It Could Be – You Decide

I was reading an article recently. It in part described a situation where one of Dad’s adult children said that Dad could not see his granddaughter anymore because the son was upset with Dad’s estate plan, but that Dad could see his granddaughter if he made some changes to the plan.

Undue influence is described in several different ways, including by statute and by case law. When are statements or discussions merely opinions, or influence, or persuasion, or even argument or disagreement, but not “undue” influence in nature? It’s not always easy to tell; but on other occasions it is obvious. You judge the above scenario using the below definition of undue influence. It sounds like undue influence, and quite possibly also elder abuse, if it meets the below criteria.

The following information is copied from my elder abuse presentation slides.

California Welfare & Institutions Code §15610.70 provides the following statutory definition of undue influence:

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following: (A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep. (B) Use of affection, intimidation, or coercion. (C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

 

I’m Getting Back To Using Video – A Video About My Practice Areas

Greetings all. I am getting back to using video more often, and another new initiative which I will be telling you about shortly. Moving forward I am trying to do one video a week, and then the other posts will be in writing.  I have done a quick video about my practice areas. Enjoy and tell others. Thanks. Dave Tate, Esq., San Francisco / California, (415) 917-4030.

Is Your Trust, Estate, Power Of Attorney, Conservatorship, Or Care Situation Contentious?

Are there disagreements and disputes in your trust, estate, power of attorney, conservatorship or care situation? That’s not unusual. In fact, based on my experience, I would have to say that it’s pretty common. But it can also be a game changer.

Generally a fiduciary such as a trustee, executor or conservator, and sometimes an attorney in fact, should always hire an attorney when challenging or difficult issues or significant assets are involved. The question is whether one of the parties who is involved in the situation has, or needs to, or may, or likely will hire an attorney with a view toward litigation? That’s a game changer when that possibility might occur or actually does.

Trust, estate, conservatorship, power of attorney, care and elder abuse situations and litigation are complicated legal practice areas that typically can involve a lot of emotional feelings and mistrust, and that require the attorney to know multiple areas of law and court procedure.

If you are a fiduciary such as a trustee, executor, conservator or attorney in fact you need to hire an attorney who can advise you properly about your responsibilities and on the administration of the trust, estate and assets, or on the care and daily living needs of the conservatee or person in need, with a view toward helping you to satisfy your responsibilities effectively and correctly, practicing prudent risk management and documentation, avoiding liability and litigation, and prevailing in court if the situation ends up in court.

If you are a beneficiary you need to hire an attorney who can steer you correctly to help you protect your rights and obtain the assets that were intended for you, and not waste your resources and the resources of the trust or of the estate, or possibly cause you to be surcharged for the attorneys’ fees of the other side, with a view toward prevailing in court if the situation ends up in court. If you are a beneficiary you also don’t want to unknowingly contest a trust or will or possibly disinherit yourself.

And if you are a trustor who is no longer trustee, or a principal under a power of attorney, or a conservatee, you need to feel and know that your physical, mental and financial needs and rights are correctly and timely cared for and protected, and you might also need to be represented by legal counsel. In fact, if the situation ends up in court, in some situations, such as in a conservatorship, you have an absolute right to be represented by an attorney, and in other situations the court should and will on its own appoint legal counsel to represent and advocate for you.

For additional information, the following is a link to my summary paper discussing trustee and beneficiary responsibilities and rights, and you can also find helpful information about other situations on other posts on this blog, CLICK HERE

Contact me if you would like to discuss your situation. You can contact me by sending me an email at davetateesq@gmail.com. Before we discuss your situation I will need to know the names of the people and attorneys involved to check for any possible conflicts.

Wishing you the very best,

Dave Tate, Esq., San Francisco and throughout California

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