By signing a Power of Attorney document you appoint another person as “Agent.” That Agent has the authority listed in the Power of Attorney. If the document is a Durable General Power of Attorney, the Agent has broad rights to control and use financial assets. The person who signed a power of attorney can revoke and amend that Power of Attorney at any time. But, if that person is now incapacitated, different routes must be explored for Agent removal.
The court can remove a fiduciary, such as an Agent under a Power of Attorney, when the court believes that the Agent has taken action counter to the beneficiary’s best interest breaching their fiduciary duty.
The judge will remove an Agent under a Power of Attorney only if he or she hears the proper evidence. You must provide the judge evidence in the form of documents and testimony. Gathering this evidence requires depositions, expert witnesses such as accountants, interrogatories, witness interviews, subpoenaed documents and evidence presented following the Rules of Evidence and subject to the Agent’s objections. Our experienced Estate Litigation Attorneys will walk you through every step of this complicated journey. Convincing judges to remove Agents is what we do.
Judges take Agent removal seriously, and will only accept evidence if your team has followed proper procedures. Further, Agents are free to use Estate funds to defend themselves. If not countered by an experienced attorney, the fiduciary can use procedural steps to draw out the process and increase costs. An experienced Agent Under Power of Attorney Removal Attorney can assess the situation and help avoid pitfalls. In the end, the experience will save you money.
Just being upset with an Agent is not enough. You must provide the judge with a basis for removal. Every case is different, but this is a list of some common reasons for Agent Removal.
If an interested party believes that an Agent has committed acts requiring removal they can hire an Estate Litigation Attorney to petition for that fiduciary’s removal. Often this process is accompanied by a petition for Guardianship. Further, if the Agent’s wrongful act has damaged the Estate, the Attorney can also Petition to force the Agent to file a Formal Account. In this process, the Estate Litigation Lawyer can obtain an order allowing discovery. This allows the lawyer to depose the fiduciary, subpoena evidence, obtain records and interview witnesses.
If the Agent’s behavior remains unaltered and damage remains uncorrected to the interested person’s satisfaction, the judge will hold a hearing. At this hearing, the Agent Removal Lawyer will present the evidence gathered, using the court’s Rules of Evidence and Procedure. If after hearing all the evidence the judge finds that grounds exist for removal, the judge can order the fiduciary’s removal and surcharge the fiduciary for damages.
Some people refer to a Agent Removal action as a “Replacement Action.” This is often the case when the Power of Attorney lists successor Agents and the goal is removing the initial Agent, “replacing” him with the successor Agent.
If an interested party believes that an initial Agent has not fulfilled his duties or obligations, or has committed a Breach of Fiduciary Duty, and wants the successor Agent to serve instead, he or she can have one of our experienced litigation attorneys file a removal petition.
Prior to the hearing, discovery is made and evidence is obtained to present to the judge. This discovery process may include depositions, interviews and interrogatories of the existing Agent as well as financial advisors, beneficiaries, bankers or physicians. This evidence must be presented to the judge in an orderly fashion. An experienced attorney familiar with the court and its procedures best handles this process.
If an Agent under a Power of Attorney has violated his fiduciary duty, an interested party can address the abuse in a number of ways:
Any action against an agent including a petition for Formal Accounting must be brought in the appropriate court. The Estate Litigation Attorney assists in filing objections to the Accounting, often followed by discovery. Discovery may include obtaining copies of financial documents, depositions, interviews, and interrogatories of the fiduciary as well as financial advisors, beneficiaries, bankers or physicians. This evidence must be presented to the judge in an orderly fashion to support the objections. This process is complicated and is best handled by an Estates and Trusts focused attorney.
It is a sad but true reality that when persons are weakened by age, infirmity or mental health, others around them sometimes take advantage of this weakened state. Sadder yet, the people who most often abuse the trust of others are family members, friends and even attorneys or members of the person’s church.
Typical examples are persons who are victims of fraudulent transfers are citizens suffering from dementia, Alzheimer’s or mental disability. A fraudulent gift is made when such an individual transfers assets that he or she would otherwise not have transferred due to undue influence or a weakened state. Assets that are typically fraudulently transferred are deeds to real estate, bank accounts that are made joint with a right of survivorship or physical transfers of valuable jewelry or collections.
Often these transfers happen in the last months of the victim’s life and are not discovered until after the person has died.
Speed is essential in these cases. Joint accounts can be liquidated immediately after a person’s death, life insurance policies can be collected and real property quickly sold. It can prove difficult to recover assets once they are in the hands of the person who committed the fraudulent transfer.
Attorney Peter Klenk and his team of estate litigation attorneys and paralegals have experience pursuing fraudulent transfer claims and are familiar with the complex rules and procedures of the courts. We not only understand the estate procedures, but as experienced litigators, we understand the complex rules of discovery and obtaining orders necessary to secure and recover the assets obtained by fraudulent transfer.
If you believe there has been a fraudulent transfer and wish to have it investigated, or if you are considering a fraudulent transfer action in the court, you need an attorney or lawyer familiar with the complex rules and procedures.
Most estate plans include granting another person a power of attorney, which gives another person power to act for you. These powers of attorney can grant narrow powers, or broad powers, but either way they give the person you have trusted the ability to act for you. Often this includes gaining access to bank accounts and power of investing. Unfortunately, the person with this power (the “Agent”) sometimes abuses the power. Over the years I have witnessed embezzlement, self-dealing, and theft.
Each situation is different, and the appropriate response will depend on the given facts and circumstances. But, here are some of the common actions taken when an Agent has abused his powers.
Force an Accounting: Interested parties to a power of attorney can retain an attorney experienced in estate litigation to petition the court and obtain an order forcing the Agent to file a formal account of all actions the Agent has taken. If it is proven that the Agent abused the powers, the judge can surcharge the Agent, and make the Agent right any wrong that they may have committed.
Challenging the Power of Attorney: If you believe that a power of attorney was obtained improperly – though undue influence or by having a person execute the power of attorney while incapacitated – you can have our firm challenge the validity of that document in court.
Remove the Agent: If you have discovered evidence of wrongful acts, perhaps through the Formal Accounting, your Estate Litigation Attorney can petition the court to remove the Agent’s powers. This might include appointing an Guardian.
If you have believe an Agent under a power of attorney has committed fraud, embezzlement or has otherwise mishandled and abused the powers granted to the Agent, or if you believe a power of attorney was obtained improperly, contact us.
The interested party pays the attorney, but if the removal action is successful, the judge may order reimbursement from the estate or trust. The Agent may also hire an attorney. The estate pays this attorney, but if the judge removes the Agent for bad acts, such as Breach of Fiduciary Duty, the judge may order the Agent to repay the amount given to the lawyer.
If you are seeking to remove an Agent your case will be heard before a court with unique procedures and rules. Your case must be organized and presented in a specific manner. Evidence must be gathered through witness interviews, depositions and documents secured by subpoena. If deadlines are missed, your case will be dismissed.
Like any profession or trade, It takes years of experience to master this process. Your case is best served by having an attorney familiar and experienced with these procedures.
Retaining an attorney experienced with Agents Under Power of Attorney removal will save time and money. An experienced Estate Litigation Attorney will assemble and present the evidence so the judge can properly rule as quickly as possible.
If you have any questions about removing an Agent under POA or any other estate law topics, please contact us to schedule a free consultation.
For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate laws and techniques clearly and concisely. If you need to remove an Agent under POA our our experienced Probate Litigation Attorneys will make it easy for you to understand the process and provide top notch representation.
Many firms assign Estate Litigation cases to their young lawyers or a general litigator. This is not cost effective. Being that Estate Litigation is what we do, our experience allows us to focus quickly on the issues that matter. By being focused, we arrive at the most cost efficient plan. We find the solution to your problem while the others are just warming up.
While some firms litigate, few of them have whole departments focused exclusively on estate matters. At Klenk Law, our Estate Litigators have the luxury of partnering with other lawyers from our Probate and Estate Administration or Estate Planning Departments. The depth of experience we can focus on your case is truly impressive. Whatever issue you are facing, our team has the answer.
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Peter has done a great job with the estate planning for my father. He is very thorough and patient as we, the family need to make decisions.
Peter Klenk & Associates is my go-to firm for estate planning and advice in probate and estate administration. Peter and his attorneys are top-notch and exceptionally responsive. Peter has the knack of being able to explain extremely complex tax and estate planning issues in a manner that clients are easily able to understand and comprehend allowing them to confidently make important decisions.
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