A conflict of interest arises when the person acting as Attorney might have to choose between what is best for the senior he represents and what is best for himself. The Attorney is bound by law to what is best for the senior, while human nature will tempt him to do what is in his own best interests.
The fact that a person is the senior's spouse or child does not in itself create a conflict of interest, but potential conflicts can arise in families. Seniors should not automatically choose their children to appoint as Attorney.
For example, David appoints his son Roger under his Power of Attorney. Roger has always wanted to buy David's lakeside cottage, though David has repeatedly turned down the offers because he loves the cottage. Once Roger starts acting under David's Power of Attorney, he knows he has the legal authority to sell David's property and could sell it to himself. It's best for David if Roger doesn't buy the cottage because David wants to keep it, but Roger is tempted to do what is best for himself.
It's always considered to be a potential conflict when a senior wants to appoint a paid caregiver or a business partner. Both of these people have a financial connection to the senior which creates the conflict. The caregiver would be responsible both for setting the price of care and paying the care bills. The business partner might be tempted to make a sale or transaction that suited himself better than it suits the senior.
Financial abuse of seniors by those holding Powers of Attorney is widespread. Too many seniors have seen their life savings stolen, lost or mishandled by someone they trusted to look after the funds. Some of these cases could have been avoided by the appointment of a different Attorney.
So true. My aunt who was a Catholic nun appointed me as agent, attorney and executor of her will. She had no one willing to take care of her when the time came. Some family members were causing her stress and anxiety. When the person directive and enduring power of attorney were enacted, there were no beds available for her in Alzheimer facilities so I rented her a house, my partner and I moved in with her and took care of her. We were her taxi driver, housekeeper, made meals, baked, laundry and ironing, took her all appointments, took her to mass every Sunday, and took her on vacations. No help whatsoever from anyone else. We were accused of elder abuse, stealing, etc. We were constantly being abused ourselves for eight years. Because I was agent and POA I paid myself a wage, miles and book keeping fees. She was accepted into a facility for Alzheimer's nine months later.
ReplyDeleteShe passed away April 2017. At this time I became executor. And once all paperwork was completed, probate done, clearance certificate issued from CRA, and release letters sent to beneficiaries along with income and expenses summaries, trouble began for me. The beneficiaries were
expecting more and filed a civil lawsuit against me to and wanted me to do a formal passing if accounts which I did but these never got passed yet. We have made a deal where I give up my inheritance, cut my percentage of executor fees in half and they will cancel the court and questioning date. I am very hurt and upset by all that has happened. My aunt was a very special person and I had zero help from anyone else. She always told me what was hers was mine but nothing in writing. She also told me she did not want strangers looking after her and never wanted to go to an old peoples place (as she called it).
I will never agree to be anyone's agent, EPOA or executor again nor will I have any of these. My lawyers have cost me over $10,000 so far and it's not over yet
Hi Georgette,
DeleteI'm so sorry to hear about this. It's always the family members who never help out who stand back and wait like vultures for someone to pass.
You know, passing of accounts isn't that bad. They are making it sound like the Spanish Inquisition. There is no doubt they will make it as hard on you as they can, but mostly this amounts to picking apart your numbers. If you've got records and receipts, you'll be fine. They are using the court system as a threat against you, but remember that a passing of accounts works more FOR you than against you. You'll get your accounts passed and they'll have to shut up about it. They are pressuring you hard now because they know they might get absolutely nothing out of the passing of accounts but another legal bill.
Hang in there.
Lynne