The other side of the Power of Attorney coin

Most attorneys who do any estate planning work have represented clients who wanted to prepare a power of attorney for health care and/or a power of attorney for property. From time to time, however, a client may come in to consult with the attorney and relate facts, including that someone else is acting as agent under another person’s power of attorney, and that there may be some misfeasance, malfeasance, or abuse going on. That is the other side of the coin.

Pursuant to Section 2-10 of the Power of Attorney Act, the court can become involved in such a situation and do one of many things.  The court could make an interpretation of a power of attorney and instruct the agent on how to proceed. The court may order a guardian of the principal’s person or estate to exercise any powers under the agency, including the power to revoke it.  The court could also leave the power of attorney in place and not appoint a guardian, but enter such orders as necessary to provide for the best interests of the principal. The court could also allow a guardian to be put in place, as well as keep the agent under a power of attorney, with different roles and duties.

All of these things that the court can do are under the premise that someone believes the principal cannot control or revoke the agency any more, or that an agent is not acting for the benefit of the principal.

Should a client request assistance in this type of case, you could suggest writing to the principal and/or agent and asking for a copy of the power of attorney and some detailed explanation as to the actions taken or not taken by the agent. Should there be no response or, perhaps, an inadequate response, your client may need to consider filing the appropriate petition under the Power of Attorney Act. 

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This article was originally published in the October 2016 issue of the ISBA's Senior Lawyers newsletter.