ANOTHER EXAMPLE OF ABUSE OF POWER OF ATTORNEY

In Estate of Frances E. Francis, File No. 4332003, (Surr. Ct. West. Co. March 5, 2008), a 98 year old woman executed a Power of Attorney prepared by her tenant, a nonattorney,in which he appointed himself as the agent. and included enhanced powers in the document, such as the ability to make gifts to the attorney in fact and to add any names, including his family members, to her accounts. The document specifically dispensed with any requirement that he account during Ms. Francis’s lifetime or after her death for his acts as such agent, and removed any liability for his acts as agent during Mrs. Francis’s lifetime or after her death. The agent claimed that he had obtained the form on the internet and had read a book which helped him add the powers that he included. The day after the Power of Attorney was executed, the agent removed an old power of attorney from banks, added himself and his mother to Ms. Francis’s accounts and a few months later executed a lifetime tenancy agreement in which he and his mother were granted lifetime tenancy, joint with right of survivorship, in Ms. Francis’s home, while she retained the right to reside in the home and pay the bills. The agreement allowed the agent and his mother to remain even if they did not pay rent. When Ms. Francis died at age 100, her nephew, the sole distributee, brought an action in Surrogate’s Court for an accounting and to set aside the transfers of assets. The nephew also attached a copy of a 1987 Will that had named him as the sole heir. The agent objected to discovery proceedings and claimed that the statute of limitations had passed for his actions. He also claimed that the Power of Attorney exonerated him from any acts as well as the need to account. The court held that the statute of limitations was 6 years, sounding in breach of fiduciary duty, and that the breach of duty started when he refused to file an accounting of his proceedings as attorney in fact. The court further held that any provisions which exonerate an agent under a Power of Attorney from any and all actions run afoul of public policy and of the requirements of GOL 51503. The court granted a summary judgment to the nephew and set aside all transfers and the tenancy agreement. The court also held that a Power of Attorney cannot eliminate the agent’s obligation to account, as that is fundamental to the fiduciary relationship. The decision found that no actions of the agent could be deemed to be in the best interests of Ms. Francis, and hence the actions were void against public policy.