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Submitted by DakotaLegal on
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Submitted by DakotaLegal on
The first priority is for you to get a copy of the POA itself. No matter what you need to do next, this has to be the start. As we look at the options of getting to an accounting of your grandfather’s assets, you’ll also be constantly verifying if your Uncle (I assume your Uncle’s relationship is your grandfather’s son) has (a) acted in accord with the terms of the POA and (b) the best fiduciary interests of your grandfather.
Finding An Advocate For Your Grandfather’s Interests
You can look at the need for a legal advocate to review this POA in two ways: there are (1) your family’s interests and (2) your Grandfather’s best interests.
North Carolina has a state system for protecting seniors from economic exploitation, the Senior Law Project, which is a special state-wide project at 877-579-7562. There are also laws against economic exploitation of seniors. These laws give grounds for a separate lawsuit, quite apart from challenging the POA itself, against someone who commits such an offense criminally. Read http://www.nccppr.org/drupal/content/insightarticle/83/fraud-against-the-elderly-in-north-carolina or call the Attorney General’s Victims and Citizens Services at (919) 716-6780 or vcs@ncdoj.gov.
You may want to contact North Carolina legal services, if you need independent legal representation in this matter, and can’t otherwise afford legal help: http://www. legalaidnc.org/.
Types Of Powers Of Attorney In North Carolina
The power to handle assets or make decisions is generally limited to the “instrument” or legal document that created it. From what you’ve described, your Uncle has obtained a general or durable power of attorney. This should have obligated your Uncle to a high standard of “fiduciary” conduct.
Keep in mind, just because your Uncle may have gotten improper control, through a POA, does not mean your Uncle does not need a POA. He may also benefit from having a different sort of POA, or having more than one POA, so that your entire family may make better decision with him and for him. Here’s the legal form http://www. ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByChapter/Chapter_32A.pdf and sample used in court http://www.co.davidson.nc.us/media/pdfs/ 19/POWER_ OF_ATTORNEY_85x11.pdf. So look at a Health POA: http://www.ces. ncsu.edu/ depts/fcs/pdfs/Pub%20W540-3%20Health%20Care%20POA.pdf.
Compare the POA used by your Uncle with these fairly typical North Carolina POAs. This will both explain the limits on using it, and give you a chance to challenge whether it’s even a valid POA.
Reasons To Remove A Fiduciary, Or Cancel A POA
There are specific cases, where a POA’s representative has been removed for good cause (fraud). There’s also a possibility of some apparent conflict, where someone in a fiduciary relationship has “steered” their relative to that interested person’s own attorney. For example, http://caselaw.findlaw.com/nc-court-of-appeals/1087991.html. This might apply if your Uncle had a correctly drafted POA, but might have selected a potentially biased attorney to prepare the document.
You can also point to cases, and argue by comparison (called legal analogy) where there are facts that raise the possibility of your Uncle’s not being objective about your grandfather’s best interests or wishes for his property. There doesn’t even have to be proof of actual wrong doing: just the potential of conflict. These cases, involving wills and letters testamentary, seem appropriate in cases such as this, where your Uncle is presumably also an expected heir from his father. North Carolina courts have repeatedly stressed that “[w]here conditions are present, which will prevent the representative from impartially performing his fiduciary duties, he should not be allowed to serve.” http://caselaw.findlaw.com/nc-court-of-appeals/1264277.html.
Here’s a guide to granting or ending a POA or guardianship order: http://www.ncids.org/ other% 20manuals/guardianship%20manual/Chapter%201.pdf. The process you will probably want to use is to petition for a new appointment, which can challenge your Uncle’s appointment and also get a full accounting of what he’s done so far. http://www.nccourts.org /forms/documents/1184.pdf.
Dealing with a family members
Submitted by JosephHowell on
Dealing with a family members personal affairs when they are ill or deceased is never an easy situation to be confronted with. Add the stress and conflict that disagreeing family members can cause and you may not know where to begin. Our Raleigh law firm has extensive experience handling these kinds of matters. Take a look at our resource http://www.kirkkirklaw.com/legal-resources/category/family-law/ to learn more about how your case can be solved. Our team is always willing to offer assistance in all family and wills and estates matters.
The first priority is for you to get a copy of the POA itself. No matter what you need to do next, this has to be the start. As we look at the options of getting to an accounting of your grandfather’s assets, you’ll also be constantly verifying if your Uncle (I assume your Uncle’s relationship is your grandfather’s son) has (a) acted in accord with the terms of the POA and (b) the best fiduciary interests of your grandfather.
Finding An Advocate For Your Grandfather’s Interests
You can look at the need for a legal advocate to review this POA in two ways: there are (1) your family’s interests and (2) your Grandfather’s best interests.
North Carolina has a state system for protecting seniors from economic exploitation, the Senior Law Project, which is a special state-wide project at 877-579-7562. There are also laws against economic exploitation of seniors. These laws give grounds for a separate lawsuit, quite apart from challenging the POA itself, against someone who commits such an offense criminally. Read http://www.nccppr.org/drupal/content/insightarticle/83/fraud-against-the-elderly-in-north-carolina or call the Attorney General’s Victims and Citizens Services at (919) 716-6780 or vcs@ncdoj.gov.
You may want to contact North Carolina legal services, if you need independent legal representation in this matter, and can’t otherwise afford legal help: http://www. legalaidnc.org/.
Types Of Powers Of Attorney In North Carolina
The power to handle assets or make decisions is generally limited to the “instrument” or legal document that created it. From what you’ve described, your Uncle has obtained a general or durable power of attorney. This should have obligated your Uncle to a high standard of “fiduciary” conduct.
Keep in mind, just because your Uncle may have gotten improper control, through a POA, does not mean your Uncle does not need a POA. He may also benefit from having a different sort of POA, or having more than one POA, so that your entire family may make better decision with him and for him. Here’s the legal form http://www. ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByChapter/Chapter_32A.pdf and sample used in court http://www.co.davidson.nc.us/media/pdfs/ 19/POWER_ OF_ATTORNEY_85x11.pdf. So look at a Health POA: http://www.ces. ncsu.edu/ depts/fcs/pdfs/Pub%20W540-3%20Health%20Care%20POA.pdf.
Compare the POA used by your Uncle with these fairly typical North Carolina POAs. This will both explain the limits on using it, and give you a chance to challenge whether it’s even a valid POA.
Reasons To Remove A Fiduciary, Or Cancel A POA
There are specific cases, where a POA’s representative has been removed for good cause (fraud). There’s also a possibility of some apparent conflict, where someone in a fiduciary relationship has “steered” their relative to that interested person’s own attorney. For example, http://caselaw.findlaw.com/nc-court-of-appeals/1087991.html. This might apply if your Uncle had a correctly drafted POA, but might have selected a potentially biased attorney to prepare the document.
You can also point to cases, and argue by comparison (called legal analogy) where there are facts that raise the possibility of your Uncle’s not being objective about your grandfather’s best interests or wishes for his property. There doesn’t even have to be proof of actual wrong doing: just the potential of conflict. These cases, involving wills and letters testamentary, seem appropriate in cases such as this, where your Uncle is presumably also an expected heir from his father. North Carolina courts have repeatedly stressed that “[w]here conditions are present, which will prevent the representative from impartially performing his fiduciary duties, he should not be allowed to serve.” http://caselaw.findlaw.com/nc-court-of-appeals/1264277.html.
Here’s a guide to granting or ending a POA or guardianship order: http://www.ncids.org/ other% 20manuals/guardianship%20manual/Chapter%201.pdf. The process you will probably want to use is to petition for a new appointment, which can challenge your Uncle’s appointment and also get a full accounting of what he’s done so far. http://www.nccourts.org /forms/documents/1184.pdf.