Protecting Estates.
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Litigating against a power of attorney

Powers of attorney give people the power to make various types of decisions on another’s behalf. However, these documents also come with responsibility.

This article will examine two ways one might litigate against those who misuse that responsibility. The first involves the validity of the document itself. The second involves abuses by attorneys in fact — those whom a valid power of attorney empowers, in other words.

Validity of a power of attorney

Powers of attorney are formal legal instruments. Someone opposed to one might claim any or all of the following reasons a power of attorney could be invalid:

  • There is no execution date
  • The person granting the power was not able to contract
  • There were no appropriate witnesses to the power

Appropriate witnesses should be adults. The attorney in fact cannot be a witness. Alternatively, notaries public may also notarize the acknowledgment of a power of attorney.

Breach of fiduciary duty

The law defines several duties of attorneys in fact. However, people do not have to act just because a power of attorney names them.

If a person decides once to act on behalf of someone else as an attorney in fact, then they do not have to continue doing so or do so consistently. Some exceptions to these rules might occur if there is a different contract involved.

In general, attorneys in fact must uphold a normal standard of care. If they are professionals — attorneys or accountants, for example — then they must uphold the standard of care typical of their profession.

Attorneys in fact, especially family members, might be under enough stress to make mistakes. However, if they are being reckless, acting in bad faith or using a false power of attorney, that could be adequate grounds for a lawsuit.

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