. . . or is there?
Often, a child or close friend of an elderly person will be granted a power of attorney to help the elder handle her financial affairs. Such power of attorney is usually quite broad, granting the trusted agent the ability to, among other things, sell property, open and close bank accounts, and the like.
Far too common is the case where the trusted person then uses the power of attorney for his own financial gain. Family of the exploited elderly person find out only later (often after her death) about the misdeeds.
Given that the wrongdoer was granted a full power of attorney to do anything they thought proper with the grantor's financial affairs, isn't it impossible to sue the agent for misappropriating money or property, for re-titling assets in the agent's name?
No. In Georgia, as in most other states, an "agent . . . cannot have any interest or do any act adverse to the interest of his principal . . ." Furthermore, "[t]he agent shall not make a personal profit from his principal's property; for all such he is bound to account." First National Bank of Paulding County v. Cooper, 252 Ga. 215, 215 (1984).
If a loved one dies and the family fears he has been exploited through misuse of a power of attorney, what can be done? Foremost, an attorney should be contacted immediately. Placing an injunction on distribution of mis-titled insurance policies and accounts early on can save an estate large sums. A "constructive trust" may likewise be placed over the assets of the wrongdoing agent to ensure the stolen property isn't dissipated before the case comes to trial.
Often, such matters settle early. Faced with the reality of their misdeeds and the plain wording of Georgia law, many power-of-attorney-abusing agents will simply allow the matter to progress without putting up a fight. Even in absence of a settlement, a court showing that an agent did some act contrary to the interests of his principal is not as difficult as - say - showing that a will signer was incompetent, and litigation is often worthwhile for the estate.
The cutting edge of probate litigation: Bystander Struck By Flying Body May Sue Dead Man’s Estate, Appeals Court SaysRead Now
This firm is clearly not tackling avant guarde issues in probate litigation, as demonstrated by this article in the Chicago Tribune. According to the story, a man died when struck by an express Amtrak train in 2008. Unfortunately a piece of his body also struck another woman during the accident.
The woman hit by his flying body parts is now suing the dead man's estate.
And apparently, she has a case. The Illinois Court of Appeals recently overturned the trial court opinion dismissing the suit. The injuries the plaintiff suffered were, according to the appellate court, a reasonably foreseeable result of the dead defendant's actions.
The ABA has published a quick write-up of the story here.
Tanner Pittman, LLC is a West Georgia law firm that specializes in estate services, civil litigation, and legal transactions.
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