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Jewish World Review
March 31, 2008
/ 24 Adar II 5768
Lawyer's advice cuts out family
By
Jan L. Warner & Jan Collins
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http://www.JewishWorldReview.com |
Q: My uncle and aunt are in their 80s, have no children and are far removed from their extended family, which is composed of two nieces and one nephew — who is me. Although we all live a good three-hour drive from our aunt and uncle, we each visit one day a month, usually on a Saturday or Sunday. Each of us calls at least twice a week to make sure they are doing OK.
Several months ago, my uncle called and asked if I could meet with him and my aunt and their attorney, who was going to prepare powers of attorney and wills. I took off time from work picked them up, and took them to the lawyer's office. The lawyer looked miffed that they had invited me and spent the next 45 minutes telling us all of the reasons why my aunt and uncle needed agents who live in the same town. I couldn't get a word in edgewise about how my siblings and I visited every few weeks and called regularly. For the first time sitting in that meeting, I was aware that my aunt and uncle probably didn't understand much of what was going on.
When I didn't hear from the lawyer for a couple of weeks, I called him, only to be told by his secretary that he could not discuss the legal work he did for our aunt and uncle. So I called them and was told that because none of us lived close enough, they had appointed none other than their lawyer to make financial and health decisions for them.
My siblings and I have no idea what they are worth but believe that the lawyer steered them in the wrong direction. I made it a point to visit them during the week and picked up a copy of their powers of attorney from the courthouse, and I was surprised to see that the lawyer had very broad authority with their money. My question is whether this type of activity is normal and accepted.
A: The attorney overstepped his bounds. First, we have what appear to be vulnerable and dependent seniors who have no immediate family.
Second, while having a family member living next door would be a blessing, based upon the close relationship you and your siblings apparently have with your aunt and uncle, it would appear that a three-hour drive is not an insurmountable barrier to the appointment of one of you as attorney in fact and health care proxy. Given the fact that your aunt and uncle asked you to be present at the meeting held in their lawyer's office, it is surprising that you were not appointed.
When an attorney represents clients in the preparation of important documents like wills and powers of attorney, there is a conflict of interest for the lawyer to even suggest that he or she be appointed as a fiduciary. In fact, under the circumstances that you describe, such an appointment smacks of impropriety and is a sure way in which a lawyer can get into trouble. Lawyers should not engage in business transactions with clients except under rare circumstances, and then only when the client has the chance to contact an independent attorney and signs a written consent.
In this case, to discourage your aunt and uncle from appointing family members is inappropriate, especially when it comes to making health care decisions. While we don't know all of the facts and circumstances, the situation here appears to be a recipe for disaster, especially if the agent's authorities are broad and unrestricted.
What to do? If you can't talk to your aunt and uncle, we suggest that you contact your local bar association and file a complaint.
Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.
JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
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