What Are The Chances of Being Sued as Attorney for Property or Personal Care?

It is more common than most people realize. In a healthy family, the likelihood of being sued is lower, provided the attorney (the person named in the POA document) is properly managing the incapable person’s assets and is transparent about such management.

However, unhealthy family dynamics increase the risk that an attorney for property or personal care may be accused, rightly or wrongly, of mismanaging the incapable person’s finances or care.

Power of Attorney lawsuits happen more often where:

• One or both parent(s) did not show love to one or more of the children
• There was family violence or abuse
• Any family member has addiction or mental health issues
• Any family member is financially irresponsible or financially dependent on the incapable person
• There was or is sibling rivalry
• Any family member is estranged
• One sibling lives with, or lives close by, the parents and the others do not
• There is a first and second family (blended family)

An entire field of psychology could exist to explain how and why these legal disputes arise-whether to explain why an attorney did, in fact, mismanage the incapable person’s finances, or to explain why others are accusing an innocent attorney of this. Both situations seem to happen equally often.

The incapable person’s assets mean different things to different family members. Some family members believe they are entitled to whatever they want, plain and simple. They have done nothing to earn what they demand. Whether a personal, generational, or cultural phenomenon, this entitlement deserves a field of psychology unto itself.

For other family members, the incapable person’s assets represent what they did not receive from the incapable person, or, what someone else received that they did not, such as support, love, validation, or respect. Many family members want to ensure they receive an equal or a greater amount of the incapable person’s assets as a way of making up for the support, love, validation or respect they did not receive from the incapable person in their lifetime.

The incapable person’s choice of attorney for property or personal care can causes significant reactions in some families. For some, not being named the attorney is a bitter reminder that another person was closer with the incapable person or had the relationship with the incapable person they wanted to have. For others, it is simply about power. They want to have power over their siblings, or step-family, and being attorney for property or personal care gives them that power.

Attorneys are at risk that family and personal dynamics will lead to a legal dispute. The attorney cannot avoid toxic family members, or prevent people from bringing meritless legal claims, but the attorney can help protect themselves by proactively maintaining accounts and supporting documentation.

It is not uncommon for the future beneficiaries of the incapable person’s estate to question every expenditure ever made by the attorney for property, even over many years. This means, attorneys for property can best protect themselves by tracking, detailing, and keeping supporting evidence of every expenditure they make on behalf of the incapable person.

Estates lawyers see family members demand in court that the attorney for property personally repay all funds ever spent on lotions, pajamas, newspapers or other sundries for the incapable person if the attorney has no receipt to evidence these purchases. There are family members demanding in court that the attorney personally repay all gifts to the church, or the priest, or the local charity, which the attorney makes on the incapable person’s behalf. If the attorney didn’t keep a receipt for these gifts, the attorney can be liable (even if the accusers know full well that the incapable person had always gifted in this way before losing capacity).

Sometimes, family members demand the attorney repay every dollar ever removed from the incapable person’s bank accounts if the attorney cannot prove the money was spent by the incapable person or for their benefit (even if the incapable person regularly used cash each week). This can add up to tens even hundreds of thousands of dollars over time.

If you are acting as an attorney for property, it is best to protect yourself by always acting in the best interests of the incapable person, following the law, not using the incapable person’s assets or money for yourself, and keeping copious, organized notes and receipts for every dollar spent during the time you act as attorney for property.

If you are acting as an attorney for personal care, it is best to protect yourself by always acting in the best interests of the incapable person, following their wishes for personal care (if they gave or can give input into these matters), consulting with their medical team and interested family members, and keeping copious, organized notes of all personal care decisions you made on behalf of the person.

See Also: 5 Reasons You Can Be Sued As Power of Attorney For Property

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