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BCLP Team to Present on Litigation Risks of COVID-19 Remote Witnessing and Notarization

As a result of the COVID-19 pandemic, many states have temporarily authorized remote witnessing and notarization of estate planning documents. These laws present a unique set of litigation risks, which can be mitigated with careful planning.

BCLP Partner, Doug Stanley, and Associates, Andrew Bleyer and Sasha Riedisser, will be discussing this topic on a Federal Bar Association webinar on Friday, May 15 at 2 p.m. CST. You can register for the webinar here.

BCLP Counsel Elizabeth Schlesinger to Present with HRC

BCLP Counsel Elizabeth Schlesinger will be presenting at the Human Rights Campaign Webinar on estate planning documents that can help protect you and your loved ones during the COVID-19 crisis and beyond.  The Webinar will be held on April 20, 2020 at 4 p.m. EST.

Register for the Webinar here.

Agents Under Power of Attorney – Where Will You Get Hauled Into Court?

April 19, 2017

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Powers of attorney can be matters of convenience or matters of necessity – the principal either doesn’t want to do something or the principal can’t do something.  For the agents under a power of attorney, allowing yourself to be named as an agent may be nothing more than a favor to friend or an expectation as a son or daughter.  When agreeing to be an agent, it may be worth a pause to consider the geographic scope of that responsibility.  Friends and kids move away, but – like a daughter acting as an agent under her father’s power of attorney in Sullivan v. Bunnell – they may find themselves getting hauled into court across the country because they served as an agent under a power of attorney.

Here, in the midst of his divorce, the father moved from

Do You Really Want To Use That Power Of Attorney To Give Yourself Something?

September 21, 2016

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In Georgia, an agent acting under a power of attorney can give himself the principal’s property at the principal’s direction.  The Georgia Supreme Court reaffirmed that maxim in Anderson v. Anderson.

There, less than a week before the principal’s death, the agent used a power of attorney to execute a deed conveying to himself 280 acres of the principal’s property and another 500 acres of the principal’s property to himself and his siblings. The trial court set aside the deeds on the grounds of a breach of fiduciary duty.  The Georgia Supreme Court reversed and remanded because there was some evidence that the agent executed the deeds at the principal’s request.  There can be no breach of fiduciary duty when an agent acts pursuant to the principal’s express direction or with

Power Of Attorney Did Not Authorize Creation Of Trust

October 7, 2015

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Because powers of attorney are often used as an elder care planning tool, they are also often used by the attorney-in-fact to manage the estate planning and finances of the principal.  The creation of a trust can be an important estate planning tool, so, if the principal wants to authorize his or her agent to create a trust, that authorization should be specifically granted in the power of attorney.  Not surprisingly, there is increasing litigation over the scope of power conveyed to an agent through a power of attorney, including litigation regarding the agent’s authority to create a trust for the principal.  In Dishman v. Dougherty, Kentucky was one of the latest states to have an appellate court weigh in.

Setting aside a

Holding Power Of Attorney Doesn’t Prohibit All Gifts From Principal To Agent

July 8, 2014

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We’ve previously noted that, as the population ages, power of attorney litigation has become a ‘hot’ area of fiduciary litigation.  Transfers of property from a principal to her agent get looked at closely and often – and sometimes justifiably – with suspicion.  And, if the holder of a power of attorney transfers property to herself using the power of attorney, if anyone catches it, then litigation is all but assured.  But, this doesn’t mean that a principal is forever barred from ever giving money or property to her agent.  The principal’s agent is, for example, often the principal’s child.  Certainly, absent incapacity, undue influence, fraud or other similar issues, a parent should be able to freely give property

Breach Of Fiduciary Duty Under Power Of Attorney

January 28, 2014

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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.

Missouri Court Of Appeals Holds That Attorney-In-Fact Violated Fiduciary Duty

With research and drafting assistance from Washington University School of Law student, Kelsey DeLong.

In Estate of Lambur, the Missouri Court of Appeals addressed the issue of whether an attorney-in-fact is permitted to gift the principal’s property to herself when the gift is not expressly authorized in the power of attorney.

In 2005, Verna Irene Lambur (“Irene”) executed a durable power of attorney naming her nephew’s wife, Anna Stidham (“Anna”), and Jackie Johnson (“Jackie”) as her attorneys-in-fact.  The power of attorney granted Irene’s attorneys-in-fact the following power:

To establish, change or revoke survivorship rights in property or accounts, beneficiary designations for life insurance, IRA and other contracts and plans, and registrations in beneficiary form; to establish ownership of property or accounts in my name with others in joint tenancy with rights of survivorship and to exercise any right I have in joint property; to

Breach Of Fiduciary Duty By Successor Attorney-In-Fact Under Power Of Attorney

June 27, 2013

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An attorney-in-fact owes fiduciary duties to his or her principal when acting pursuant to a power of attorney.  When an attorney-in-fact acts contrary to his or her principal’s instructions, then they may end up breaching their fiduciary duties.  In Georgia, the same may hold true for successor attorneys-in-fact under a power of attorney because that’s what happened to Se Ill Choi in Lee v. Choi.

John Blackwell executed a power of attorney naming his wife, Ki Tae Lee, as attorney-in-fact, and naming Choi as her successor in the event the wife was unable to serve.  It was a typically broad power of attorney, providing for bank, business, real property, personal property, tax and insurance transactions, borrowing money, the commencement and prosecution of disputes, and granting access to safe deposit boxes.

The Blackwells also agreed to open a joint investment account naming

Form Health Care Power Of Attorney Does Not Create A Presumption Of Undue Influence For Property Transactions

April 16, 2013

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We’ve previously noted that litigation involving powers of attorney is popular right now.  Powers of attorney take on particular importance in undue influence cases because they can turn the case on its head by creating a presumption of undue influence.  The reason why is that a power of attorney can create a fiduciary relationship between the principal and agent.

But not all powers of attorney are created equal.  In In re: Estate of Stahling, an Illinois appellate court recently answered the important question of whether a health care power of attorney creates a fiduciary relationship with respect to the execution of a deed transferring property to the agent which, as a matter of law, raises a presumption of undue influence.

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