Defending Against Abuse of a Power of Attorney

Attorneys will advise you that you should have a power of attorney. A Power of Attorney is an important document that allows someone else to handle your affairs if you have difficulty or are unable to do so. With age and illness, a Power of Attorney often becomes necessary. Usually the person who is given the authority to act will do so with the best of intentions. What happens, however, if the person you trust misuses the Power of Attorney for personal gain or benefit? A Power of Attorney may seem like a simple document, but it can have far-reaching and unintended consequences. A Power of Attorney can be very tempting to the person who has it.

A Power of Attorney is a legal document by which a person (the “Principal”) gives someone else (the “Agent” or “Attorney-in-fact”) the authority to act on the Principal’s behalf. If the Principal becomes ill, incapacitated or otherwise unable to handle her financial affairs, or simply chooses to let someone else do it for her, the person or persons she designated in the Power of Attorney can pay bills, deal with banks, lawyers and other professionals, and do other things that are in the best interest of the Principal.

A Power of Attorney can be general, meaning that it gives the Attorney-in-fact the authority to do whatever the Principal might do for herself, or limited, meaning that it is limited in scope and/or time. For example, a Power of Attorney may be limited to one specified act or type of act, such as a limited Power of Attorney to attend a real estate closing and sign the closing documents on behalf of a buyer or seller, or it may be limited in time, such as a Power of Attorney that is effective only during the time that someone is out of the country on a trip. A Power of Attorney also may be durable, meaning that it takes effect upon its execution (or a specified date) and continues in effect even if the Principal becomes incapacitated, or springing, meaning that it only takes effect after the Principal is incapacitated (or some other definite future act or circumstance). The problem with a springing Power of Attorney is that it requires a judicial determination of incapacity for the power to take effect. This can take a considerable amount of time – plus the initiation of legal proceedings, the hiring by the Court of an independent person to interview and investigate the circumstances of the alleged incompetent, and a hearing in Court – often exactly at a most trying time when there is a need for prompt or immediate action.

In New Jersey, a Power of Attorney can include provisions with respect to making health care decisions, including the power to consent to any medical care, treatment, service or procedure. A health care power of attorney is different than a “Living Will”, which is a written statement of a person’s health care and medical wishes, but does not appoint another person to make health care decisions.

A Power of Attorney is a useful and powerful tool. Unfortunately, as with many things, something with a good purpose still can be used for improper purposes. A general Power of Attorney allows the Agent or Attorney-in-fact to do almost anything the Principal could or might do herself. As a result, it can be an invitation to abuse and self-dealing.

The victim of Power of Attorney abuse often may not be aware of what is happening, or even if she is may feel powerless to say or do anything because she is dependent on the abuser for care and companionship. The nature and extent of the abuse may not come to light until after the person has died and someone else is able to obtain access to her banking and other financial records.

Disputes can arise when the Agent or Attorney-in-fact has used the Power of Attorney to transfer the Principal’s assets to himself or his family members. This may be done as an estate planning technique, such as making gifts to take advantage of the annual exclusion from gift taxes. On the other hand, it may be done to deprive other family members of a share of the Principal’s assets that they otherwise might eventually inherit. For example, a person may wrongfully use a Power of Attorney to withdraw money from the Principal’s bank accounts and deposit the money in his or own bank account. We have seen this and been involved in litigation to get the money back.

Under New Jersey law, the traditional rule was that a power of attorney should not be construed to allow the Agent or Attorney-in-fact to give the Principal’s assets to himself or others without clear language in the power authorizing such gifts. See Manna v. Pirozzi, 44 N.J. Super. 227 (App. Div. 1957). In 2004 in New Jersey a law was passed stating that a Power of Attorney shall not be construed to authorize the Attorney-in-fact to gratuitously transfer property of the Principal to the Attorney-in-fact or any one else except to the extent that the Power of Attorney expressly and specifically so authorizes. N.J.S.A 46:2B-8.13a. If this happens, the Superior Court, upon application of any heir or other next friend of the Principal, may require the Attorney-in-fact to render an accounting (i.e. an explanation of when and for what the money was used) if there is doubt or concern whether the Attorney-in-fact has acted within the powers delegated by the Power of Attorney for the benefit of the Principal. N.J.S.A. 46:2B-8.13(b).

A Power of Attorney also may be attacked as having been procured by undue influence, or when the Principal already was incompetent and therefore legally unable to execute a Power of Attorney. This type of action is similar to a will contest in which a will is claimed to have been procured by undue influence, or in which it is claimed that the testator was of unsound mind and unable legally to make a will.

The Role Of a Reputable Accident Attorney

All accident attorneys are not created equal. Some attorneys may be very effective in general aspects of negligence claims, and have little experience with some specifics. Accident claims are all unique in case particulars and personal situations, with determination of punitive damages needing evaluation. Compensatory damages for property can be relatively simple, but personal injuries often include a “pain and suffering” component. Calculating an appropriate punitive remuneration amount can be complicated, so it is important to retain an accident attorney with a solid track record.

What is Reputable?

Obviously, a reputation can be established in multiple ways. Some attorneys will not take cases of a particular type, and states are reluctant to certify attorneys in specific areas of law. There are still a few indicators of attorney experience and effectiveness. Many attorneys rely largely on personal references from clients, and this may be the most effective method of advertising. Merely choosing an accident attorney based on a single advertisement may not be advisable.

Reputable attorneys will often be registered with state legal associations, such as Super Attorneys, and some state professional associations certify trial attorneys. Any professional certification indicates respect among their peers, and is always a positive. The Internet is an excellent source of information regarding solid attorneys provide: some sites provide a matching service between clients and attorneys, whilst other sites offer reviews from previous clients allowing you to make a more informed choice over who to hire. Always remember it is important to choose the right lawyer for your case who has your interests in mind and do a comprehensive analysis.

What Does An Accident Attorney Do?

Retaining the right attorney can make a big difference in the value of a case, especially if a specific attorney is willing and able to present case evidence in a method that maximizes the client’s financial benefit. Good accident attorneys leave no stone alone in an assessment of possible negligent parties in an accident. Claims are always assessed for compensatory and punitive damage amounts, and the courts will routinely assign percentages of fault in cases with multiple respondents.

An experienced attorney will file claims against all negligent parties, both physical injury and property, and use similar values to illustrate the request for reasonable remuneration. Many times a settlement is negotiated to prevent the insurance company or responsible party from admitting guilt, so negotiation skills are crucial. A solid attorney knows how to leverage this situation.

Negotiation Skills

All accident attorneys understand the basics of filing an injury claim, as some cases indicate clear lines of negligence and fault. The real skill for an attorney is in the negotiation process, especially if the primary responsible defendant has financial resources that may be attainable beyond insurance coverage. Insurance polices all have monetary caps, and their coverage responsibility stops at the cap. That is not necessarily true for individuals with additional resources in cases that calculated higher in damages. Furthermore, when multiple negligent respondents are involved, the total amount of the claim may be settled significantly higher with an attorney that is skilled in multiple and simultaneous negotiations.

Reputable attorneys clearly earn their reputation, regardless of what it may be. It is important for each claimant to choose an attorney that is right for the case, with a reasonable amount of research. Location of the case and the attorney’s familiarity with the local court system can be a good place to start, as this indicates that the attorneys may actually know the judges and local court policy.

Attorneys who maintain good working relationships with court management can be an advantage in cases that may require unique motions. Never hire an attorney on a hunch. Always get some solid information first.

Choosing a Medical Malpractice Attorney – How to Decide

There is a commercial on the radio which suggests you should not buy a house from a cabdriver who happens to take you past the house. The premise, of course, is that the cabdriver has little or no knowledge of the home or of you. The obvious truth of this simple message extends to almost every facet of our lives. Very few of us would hire someone for something as important as being a babysitter for our children or as relatively mundane as repairing our car without being sure that the person we hire knows what they are doing and has some positive track record that we can rely upon. With that basic premise in mind, I find myself consistently surprised at how often a person will hire an attorney to handle a medical malpractice case (as well as many other types of cases) without knowing who the attorney is; what experience they may have in the field; what their record of success in the field may be; or, where they stand in the eyes of their peers and adversaries.

When a person is injured from medical malpractice, a lawsuit against a doctor or health care provider is usually the furthest thing from his or her mind. Concerns about one’s health; one’s ability to keep working and providing for a family; and, the ability to regain one’s place as a productive member of society are among the far more pressing issues. It is typically not until these concerns have been dealt with or accepted that people even consider whether malpractice might have occurred. Unfortunately, the realization that one’s life altering injury may have been preventable often adds to the difficulty of the situation.

It is within this emotionally charged and upsetting context that the search for a medical malpractice attorney typically begins. Of course, most people do not know which attorneys concentrate their practice in a specific area or which attorneys happen to focus their practice on the highly technical and difficult field of medical malpractice. Most attorney advertising suggests that the attorney who paid for the ad is an expert in every area of the law including medical malpractice. With the personal stresses and without any way to separate out which attorneys truly know how to handle a medical malpractice case, many people will hire the wrong lawyer.

A further part of the difficulty an injured person deals with when he or she considers a lawsuit is the perceived role of lawsuits in today’s society. Lawsuits are not and should not be about a “quick buck” or holding a company up for a “pay day”. The civil justice system is about accountability – about placing blame where it belongs. It is about making sure that those injured are compensated for that which they can never get back. It is about making sure that the individual, regardless of his or her financial or societal status, has the same rights as the rich and powerful. It is about assuring society that we are all equal.

Not every wrong can or should be the basis of a lawsuit. There are, however, many valid reasons to bring a lawsuit. Obviously, the simplest reason is to right a wrong. There is also great benefit to others in our community and our society as a whole in that meritorious lawsuits deter similar conduct. Unfortunately, the role of lawsuits in society has been damaged considerably by media attention of a handful of lawsuits, some of which were portrayed inaccurately to fit an agenda and some of which were portrayed correctly but should never have been brought. The end result is that, for a great number of people, lawsuits are nearly the definition of what is wrong with our society today. Critics of our judicial system depict our courts as out of control, attorneys as greedy and lawsuits as damaging to the economy and society as a whole.

Obviously, these are positions taken to drive an agenda. These critics do not address the accountability and equality a lawsuit can provide. They do not account for the positive societal changes the courts have engendered. They do not account for workplaces and products having been made safer by the effects of a lawsuit. They do not account for the millions of people who have been restored some of the ill-gotten gains fleeced by stockbrokers and corporations. They do not account for the many people who do not need to resort to public assistance for their health needs because a lawsuit has provided sufficient financial resources. In short, they do not account for any of the benefits to society of a lawsuit. Rather, they focus on some examples of ill-conceived or poorly prosecuted cases as representative of our system as a whole.

Take a moment to consider who drives these agendas: insurance companies; big business; negligent doctors and others. We must consider, before we accept their agenda, whether they have our best interests at heart or whether their agenda is designed to avoid accountability and increase profits. There are many questions a person must ask themselves before they even consider whether to bring a lawsuit. The most important of those questions, however, is why, over the course of centuries, wars have been waged and governments toppled by people demanding the equality and justice guaranteed by our courts?

A lawsuit is not appropriate in every instance but the decision to pursue this right should be an individual decision about what, under the circumstances, is right for an injured person and his or her family. The doctor whose mistake puts a child in a wheelchair for life or a young wife and mother in an early grave does not have to live with the family he or she has destroyed. The CEO whose decision to increase profit through the use of a toxic additive does not have to live in the town poisoned by that product. The insurance company accountant who refuses to pay for treatment to a seriously ill person who paid for that coverage does not have to watch the person die because they did not receive the treatment. These individuals do not have to live with the ramifications of their decisions and actions and their agenda to avoid responsibility should not drive the injured person’s decision to bring a lawsuit or not.

Additionally, those injured by medical negligence often consider the personal and societal impact occasioned by prosecuting a suit. Not infrequently, the injured party or their family personally likes the physician suspecting of doing them harm. Even more frequently, a person injured by a medical professional is made to feel that a lawsuit against that doctor will cause the doctor to leave practice or move to another state. These feelings are generated by a well orchestrated and well financed campaign by the medical lobby. The clearly intended purpose of their message is to prevent lawsuits through guilt and fear.

It has been well documented that, not only does New York have one of the highest population of doctors in the country, but more than 50% of malpractice is caused by less than 5% of our doctors. Unfortunately, in most instances, it is the doctors who make up the 5% that orchestrate the media and political spin of the medical lobby. Rather than focusing their attention on improving the quality of care or increasing medical reimbursement rates by HMO’s and the government, which would benefit all doctors and, in large part, all of society, their attention is focused on stopping those most seriously injured from seeking redress in court. Not surprisingly, such an impact only serves to aid those doctors who commit malpractice and, by and large, damages society.

Once again, the decision to bring a lawsuit must be made on an individual basis. The fact that a physician, while maybe not a friend, was kindly or soft spoken as they committed an act of malpractice may be a driving factor in an individual decision. The ultimate question for the individual making the decision on whether to pursue a case against a doctor with a nice personality or demeanor is whether the wrong which was committed, although clearly unintended, is one which we would want repeated. The medical profession, by and large, does not discipline negligence. As such, the only opportunity to prevent a physician from continuing an unsafe practice or procedure is through the courts. Whether one is making this decision for oneself, a parent or a child, the issue is less about who we like and more about whether we would be comfortable knowing that someone else’s child or loved one has become injured because we allowed a tailored, politically driven, highly financed and, ultimately false story about doctors leaving the state deter us from the societal good of preventing bad medicine.

Having made the decision to pursue a potential lawsuit, an injured party must consider which attorney will prosecute the case on their behalf. As discussed above, choosing the right attorney should involve determining the person best suited to winning the lawsuit. Too often, the decision is made on the wrong criteria. The doctors, hospitals, insurance companies and corporate wrongdoers who have caused the injury in the first place have spent considerable time and effort to convince those injured through their negligence that all attorneys can handle any case with the same relative level of skill. They know that a lack of understanding, experience or knowledge by the attorney representing a person injured by negligence, even early in an investigation, can severely damage the ability of that attorney to successfully resolve even the most meritorious case. The standing of attorneys in society, which is generally self-inflicted, has led us to a place where an injured person frequently hires the first attorney they see; a relative; a friend; or, the guy who advertises on the television and radio. While some may be qualified to handle a malpractice case, the reality is that most will not. Needless to say, the generally poor results generated when an unqualified attorney handles a complex malpractice case, exacerbates the poor standing of attorneys in society and the willingness of litigants to feel that any attorney will do. The reality is that not all attorneys are capable of handling medical malpractice cases which are, by their very nature, complicated and difficult.

When making a decision as to who will represent you, your child or your loved one, the decision needs to be based on the same criteria you would rely upon for any other difficult decision. Does the attorney have experience with this type of case? How has this attorney and his or her firm performed on other malpractice cases? What is the standing of the attorney in the community as a whole and in the smaller community of malpractice attorneys? What does the attorneys peers say about him or her? What does the attorneys adversaries say about him or her? How do you interact with the attorney? Is he or she someone you feel you can trust? Does the attorney understand the intricacies of medicine and the law as it surrounds your case? Were you directed to this attorney by someone with your best interests at heart or by an advertisement or person with their own agenda or profit motive? In short, is this person the very best person in the field to properly, professionally and successfully prosecute this case for you, your child, your parent or other loved one?

The insurance companies and corporate America have carefully vetted the attorneys who want to work for them defending the lawsuits brought by people injured by their negligence. They only hire the very best attorneys with the skills to be successful, the knowledge of their subject and the experience to maximize the results for their clients. Before you hire an attorney to represent you in a complex case, you should do the same. It can be overwhelming and it can be difficult to work through the various candidates. However, the decision as to which attorney to hire is too important to leave to chance.