Shark Week is fast approaching, beginning on August 9th and ending on August 16th this year. Shark Week is not canceled, contrary to what some rumors are saying, and Discovery Channel apparently has some awesome new footage for us to enjoy (while safe on our couches, of course).
Shark Week has us thinking about some of the legal “sharks” we might run into. Luckily, unlike a Great White in the ocean, the law gives you ways you can protect yourself against these not-so-nice characters, as long as you act fast. Here is an overview to protections that are in place in estate planning to keep your and your loved ones’ health and finances safe.
Protection Against a Bad Power of Attorney
In some ways, the power of attorney role in estate planning is one of the most dangerous. A bad power of attorney can be considered the “Bull Shark” of misconduct—it doesn’t get the headlines the way the Great White does, but it is responsible for the most attacks.
A power of attorney is the person in charge of someone’s finances and healthcare when the person is too incapacitated to make these decisions on his or her own behalf. The POA has a lot of power. Luckily, state and federal governments have realized the need to protect citizens—especially elderly, vulnerable people—against power of attorney misconduct.
Failure to Comply
Perhaps the most common type of power of attorney misconduct is failure to comply. When a power of attorney makes a decision or acts in a way that is not in the best interest and/or is against the wishes of the donor (the person who appointed the POA), that should be brought immediately to the attention of the court.
For example, if the POA spends the donor’s money on a new car for him- or herself, this is blatant misconduct and theft. By bringing this to the attention of an attorney or elder advocate, the POA can be revoked. The abusive POA can also face criminal charges and/or a civil lawsuit.
Coercion in Creating the POA
Another type of power of attorney abuse has to do with the formation of the POA. If a person is forced or coerced into appointing someone as power of attorney against his or her will, that can be brought to the attention of the court and revoked.
There are several ways that a POA can be abusive—colloquially, a POA has even been nicknamed a “license to steal”—but, luckily, contacting an elder advocacy organization such as the AARP or a state ombudsman can put a stop to misconduct. The state can also even bring criminal charges against the bad actor.
Bad-Faith Will Contests
A will contest in “bad faith” occurs when someone attempts to challenge or overturn a will without acting fairly and honestly. Perhaps the person knows that the will is valid, but he or she is bringing the contest as a way to pressure the beneficiaries into settling it out of court and giving him or her something to avoid the legal hassle.
In Florida, if a court finds that you are contesting a will in bad faith, the law explicitly requires the bad-faith party to pay attorney’s fees for the other side. This applies even if your claim was based on law or in fact—bad faith is bad faith.
Good-Faith Will Contests
On the flip side, contesting a will in good faith is a valid way to fight misconduct in a will through the legal system. Perhaps you believe that some part of a will is fraudulent. In Florida, you can contest a will through probate court. Usually, you must submit your challenge to the will before the probate process is over.
Early Prevention: Spotting the Warning Signs
The AARP is an advocacy organization dedicated to helping the elderly. On the organization’s website, the AARP has listed several signs of financial abuse against the elderly. One big “red flag” is when an elderly person starts to show a lack of knowledge about important financial matters. For example, the person might have been sharp and engaged before, but, now, when asked about a large withdrawal from their checking account, he or she is nonplussed. This is a sign that something might not be right.
Elderly people who are physically frail and/or isolated are at a high risk for elder abuse. Pay attention to “new friends” who pop up out of nowhere. Also, keep an eye on questionable behavior by family members, especially those who have a history of substance abuse, mental/physical ailments, financial problems, and/or lack of employment. According to the New England Journal of Medicine, these perpetrators are most likely adult children or spouses (though they can be anyone).
Keeping wary of the “sharks” in our lives and the lives of our elderly/disabled loved ones is vital. There are people who may—intentionally or negligently—try to take advantage of those in vulnerable positions. By being attentive and bringing problems to the attention of the court immediately, you can prevent abuse or misconduct.
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