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Next Steps: Relatives' lawyer may be out of line
Tuesday, April 01, 2008
Q:My uncle and aunt are in their 80s, have no children and are far removed from their extended family, which is composed of two nieces and one nephew -- who is me. Although we all live a good three-hour drive from our aunt and uncle, we each visit one day a month, usually on a Saturday or Sunday. Each of us calls at least twice a week to make sure they are doing OK.

Several months ago, my uncle called and asked if I could meet with him and my aunt and their lawyer, who was going to prepare powers of attorney and wills. I took off time from work, picked them up, and took them to the lawyer's office. The lawyer looked miffed that they had invited me and spent the next 45 minutes telling us all of the reasons why my aunt and uncle needed agents who live in the same town. I couldn't get a word in edgewise about how my siblings and I visited every few weeks and called regularly. Sitting in that meeting, I was aware that my aunt and uncle probably didn't understand much of what was going on.

When I didn't hear from the lawyer for a couple of weeks, I called him, only to be told by his secretary that he could not discuss the legal work he did for our aunt and uncle. So I called them and was told that because none of us lived close enough, they had appointed none other than their lawyer to make financial and health decisions for them.

I made it a point to visit them during the week and picked up a copy of their powers of attorney from the courthouse, and I was surprised to see that the lawyer had very broad authority with their money. My question is whether this type of activity is normal and accepted.

A: The attorney overstepped his bounds. First, we have what appear to be vulnerable and dependent seniors who have no immediate family.

Second, it would appear that a three-hour drive is not an insurmountable barrier to the appointment of one of you as attorney in fact and health care proxy. Given the fact that your aunt and uncle asked you to be present at the meeting held in their lawyer's office, it is surprising that you were not appointed.

When an attorney represents clients in the preparation of important documents such as wills and powers of attorney, there is a conflict of interest for the lawyer to even suggest that he or she be appointed as a fiduciary. In fact, under the circumstances that you describe, such an appointment smacks of impropriety.

To discourage your aunt and uncle from appointing family members is inappropriate, especially when it comes to making health-care decisions. While we don't know all of the facts and circumstances, the situation here appears to be a recipe for disaster.

What to do? If you can't talk to your aunt and uncle, we suggest you contact your local bar association and file a complaint.

Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.
First published on April 1, 2008 at 12:00 am
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