Astor Case

As you may recall, I have been following the case of Astor Brooke, and her son Anthony who has been on trial for awhile. When the guilty verdict came in, I didn't blog on this since it was found all over the wire services. Russ Wiles, a reporter for the Arizona Republic, had a great column last week on the lessons to be learned from this case. See "Astor Case Has Lessons For All of Us", October 18, 2009. The fact that the jury found Anthony guilty of theft from his incapacitated mother, his use of "her" power of attorney to steal from her entered center stage. Mr. Wiles points out that this is a wake-up call for people that use powers of attorney.

Our office prepares financial and health care powers of attorneys for almost all our clients. Great tools that enable the person you trust to take care of your affairs when you are no longer able to. Companioned with a trust, the power of attorney is an ideal way to avoid conservatorships. In my opinion, these documents are almost always an essential part of the estate plan. But as the article points out, there are pitfalls.

These documents have a lot of power. If it is a general durable power of attorney, there may be multiple pages and provisions authorizing the agent you selected to act in almost any financial transaction. The article goes on to say that the Astor case illustrates that the person selected must be responsible, diligent and reasonably astute.

The article went on to discuss certain changes being considered in the law. Currently in Arizona, there are civil and criminal penalties against those that abuse the power of the documents. Some feel more is needed. It has been my experience that most families or loved ones fail to oversee the actions of the agent and by the time abuse is discovered, the funds are spent with no ability to extract restitution from the wrongdoer.

The Uniform Law Commission, which is a group of scholars that promote exactly what their name implies, wants to make additional changes: 1. Provide third-party reviews when a spouse, heir, or someone else has reason to believe the designated agent isn't acting properly. Currently, our only options are to file with the court, which costs money, or seek help from the agencies, i.e. the attorney generals' office, Adult Protective Services, etc. 2. Unrelated to the abuse issue, the Commission is dealing with another problem. Sometimes we have a problem getting banks and financial institutions to accept a power of attorney, even if valid and well created. Often the institution will say they want their power of attorney form used or they want a more recent power of attorney. If the person is already incapacitated, this is an impossible request. The Commission is trying to get implemented into law the requirement that the power of attorney presented to the bank, brokerage firm or title company must be accepted. There is a right however for these institutions to seek a review if a reason of concern arises. There are other changes being proposed that may be beneficial.

Mr. Wiles then states that as the population ages with issue of incapacity rising, these powers of attorney will become more prevalent. This will be a great help to this segment of the population but as the Astor case shows, consideration and caution will also have to be part of the process.

My best,

Jim