By Kathleen G. Moriarty, Peters & Moriarty, Attorneys and Counselors of Law
Legal Matters is a regular column intended to address general legal concerns. Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.
There are a number of circumstances under which a person might need to make changes to a will, living will or power of attorney. The most common reason to change any of the documents is the death of a beneficiary or executor under a will or the death of an agent holding power under a living will or power of attorney (POA). For this reason, these documents should be revisited every few years to ensure that the death of a beneficiary or agent hasn’t left a gap in the person’s care or wishes.
Where a fallout with family or friends is the reason for change, there is more cause for concern. It’s not to say that a falling out isn’t a good reason to make changes, but, if fallouts occur often and result in regular changes to these documents, the danger is that there are multiple versions of the document, each in a different person’s hands. It makes it difficult to know which version is the most recent.
POAs and living wills are particularly vulnerable to this scenario, because it’s up to the person presented with the document to determine its validity. If a bank teller is presented with a POA and has no reason to doubt its validity (it’s recent, it’s notarized, and the agent has proof of ID), the teller may allow the agent to withdraw money from the principal’s account. Contrast that to wills, which are subject to the probate process through Surrogate’s Court — the will must be deemed valid by Surrogate’s Court before the executor can access the testator’s bank accounts or sell his property.
More dangerous are feuding family and friends who attempt to influence the person making out the document. For instance, a woman executes a power of attorney appointing her sister as her agent if she is incapable of making legal decisions on her own behalf; the woman’s sister and son, however, do not get along. Months after appointing her sister as her agent, the woman’s attorney gets a phone call from the woman’s son asking the attorney to redraft the power of attorney so that the son is her agent. The son indicates that the sister has stolen money from the woman’s bank account and puts the woman on the phone to verify the missing money. The sister also calls the attorney, claiming that the woman is mentally incompetent and that the son is stealing money from his mother. Needless to say, this scenario sets off red flags. The woman is the client — not the son, not the sister. After meeting with the woman, the attorney is confident that the woman is mentally competent, but he may not be comfortable drafting a new POA if there is the possibility that either the son or sister are influencing her decision — especially since the client has not initiated the change.
Often, clients, or the loved ones advocating for them, believe that it is an attorney’s job to do what the client tells him to do. The argument is, “if I’m paying you to do your job, then you should just do what I’m telling you to do.” Although I understand where this frustration comes from, it is important for clients, and their loved ones, to know that attorneys are bound by ethical obligations to do what’s best for the client, given the information presented, and to make sure that the attorney is not committing or assisting a fraud. So, sometimes that means not taking action.
In this sense, family and friends can often do more harm than good for a loved one if they’re advocating too aggressively. From an attorney’s perspective, the fear is that the client is being coerced to do something against her wishes. It is important that the client is the one making the phone calls and setting the appointments with the attorney. Otherwise, there is too much room to infer fraud, coercion or mental incompetency.
Wills, living wills and powers of attorney are extremely powerful documents, and great care should be given to choosing the person who is delegated authority under them.