Can you serve as agent of your client's POA for property?
ISBA member John Ahern of Chicago recently posted this query to the ISBA Trusts and Estates Section discussion group: "Client has no family and few friends. Client asks her attorney to be the agent on her powers of attorney and trustee on her trust and he agrees. Attorney creates the documents and discloses that he prepared them. He is not a beneficiary. Is there any specific prohibition that anyone is aware of for the attorney?"
Timothy S. Midura of Wheaton responded, saying this in part: "[There's no] 'prohibition.' [But have] your 'eyes wide open' for 1) any estate/beneficiary disputes that [the lawyer] might become a lightning rod for and 2) even higher (or highest) standards of fiduciary conduct/capability due to [being a member of the] legal profession. Bottom line: Be ready and able to do a superb job." Find out more in the March Illinois Bar Journal.
Member Comments (2)
This can be done, but the attorney is creating a document that places him in the position of getting paid by himself. When I have done this, the document - usually a Trust, contains very specific provisions for the fees to be paid to the attorney who is also serving as the Trustee.
Of course a lawyer can work as a POA for a reasonable fee, but that won't be $200 to $400 per hour. POA's get, depending on the size of the estate, about $20 to $40 per hour, so why bother?
But the biggest kicker will be defending yourself on the 18th floor if other attorneys and esp. the Office of Public Guardian gets wind of all this. They are notorious for making up false charges and then will litigate an accounting over and over until the atty goes away. Go see my blog with the Janie Thomas 2010 P 7666 case and now the Sophie Reichert case 14 P 3433. The OPG and other attorneys have terrorized the POA with repeated objections to the accounting, false claims of theft abound and your receipts will mean nothing up against the OPG, whom the court will always favor and protect. For another horror show, just go and ask Steven Schwartz about how he was falsely accused of taking promissory notes (which amazingly in a deposition the sister admitted they may have been oral!) you heard it here. "oral" promissory notes of hundreds of thousands of dollars result in a judgment against an heir. (of course the GAL Soloveitich needing her attorneys fees paid via a fake judgement would never enter into this equation, right?)
It's a nightmare and bloodbath.