One recent fiduciary litigation trend is the increase in litigation involving powers of attorney.  While some of these cases involve the abuse of a validity executed power of attorney, others involve issues in the procurement of the power of attorney, such as procurement through fraud, undue influence, or lack of capacity.  In Estate of Mary E. Hiller, the Supreme Judicial Court of Maine recently considered a probate court‘s decision involving procurement of a power of attorney and acts purportedly taken pursuant to that power of attorney.

Mary E. Hiller executed a power of attorney in favor of her son, Paul A. Ligor.  The probate court found that Hiller was not of sound mind on the date she executed the power of attorney and was able to be easily influenced, due to her physical and mental health issues.  Moreover, there was no evidence that Hiller’s physical and mental health ever improved before her death.  Because Ligor elected not to participate in the trial in which these findings were made, he waived his capacity to challenge on appeal these findings of fact regarding the procurement of the power of attorney.

Likewise, Ligor waived his capacity to challenge the probate court’s findings of fact regarding the numerous breaches of duty to Hiller under the power of attorney.  If the power of attorney was void ab initio because it was solicited when Hiller was not of sound mind, it’s unclear how Ligor could have breached a duty under the instrument, but, nevertheless, the probate court found numerous breaches of duty.

– Ligor added his name as joint owner to his mother’s financial accounts.

– Ligor set up a Scottrade account, funded solely with Hiller’s funds, as a joint account with right of survivorship and used a substantial portion of the funds for his own personal benefit.

– Ligor used Hiller’s money to purchase a car jointly titled in his and his mother’s name although Hiller was not driving at the time.

– Ligor used Hiller’s money to purchase groceries, tires and other household items that did not benefit Hiller and, who, during most of this period, was actually institutionalized in a hospital or care facility.

– Ligor paid himself and his wife from Hiller’s money, as caregivers, during a time when Hiller was mainly in a hospital or institutional care facility.

– Ligor paid himself and his wife as caregivers after his mother’s death.

– Ligor induced Hiller or wrote for her signature a check from her personal account to Ligor’s company at a time when Hiller was hospitalized.

Based on these purported facts, the probate court found that Ligor had breached his duties to Hiller under the power of attorney.

Maine fiduciary litigators may also want to take a close look at the Court’s opinion for that portion relating to Maine probate courts’ jurisdiction over power of attorney litigation.