Taxation & Estate Planning

AARP Research Report: "Power of Attorney Abuse: What States Can Do About It"

By Juan C. Antúnez

Texas probate litigator J. Michael Young wrote here on his Texas Probate Litigation Blog about a recently published AARP research piece entitled Power of Attorney Abuse: What States Can Do About It. Here's an excerpt:

The primary goal of this report is to inform state legislators, policymakers, practitioners, and advocates about the [Uniform Power of Attorney Act (UPOAA), click here]. provisions that protect against POA abuse and promote autonomy, and to support enactment efforts within the states. The secondary goal is to offer legal professionals information about their own state's law and the laws of other states. The latter information may foster inclusion of additional protections in the POA those professionals draft for clients, as well as inform advocacy efforts by the-state bar association or other organizations.

Toward those goals, this report highlights the problem of PO A abuse, explains why the UPOAA was developed, and identifies and discusses the UPOAA provisions related to protecting against POA abuse and promoting autonomy. It provides a series of charts that compare the state POA laws in effect on December 31, 2007, to each relevant provision of the UPOAA, as well as a master chart for all provisions. Finally, the report's appendixes include tips for advocates who desire to promote adoption of the UPOAA provisions in their state, a document titled "Why States Should Adopt the Uniform Power of Attorney Act (2006)," and a chart of citations to state POA laws.

Last year the UPOAA reporter, Prof. Linda Whitton of Valparaiso University - Law School, published an excellent article discussing the perceived shortcomings of current power-of-attorney statutes and how the UPOAA addresses those issues. Entitled The New Uniform Power of Attorney Act: Balancing Protection of the Principal, the Agent, and Third Persons, it's another solid resource for anyone working on a particularly thorny power-of-attorney matter.

Why read this stuff? Issue spotting, issue spotting, issue spotting . . .

It doesn't matter if you're an estate planner or probate litigator, spotting the issues most relevant to your client's interests is how we really add value as lawyers. The linked-to materials highlight the planning and litigation issues to think about in connection with powers of attorney, be it up front in the planning stage or at the back end when fraud or abuse is detected.

Full post as published by Florida Probate Litigation Blog on February 17, 2009 (boomark / email).