Thursday, January 3, 2008

POA'S "You Don't Ask" and " I Won't Tell"

Statues and Laws govern how a POA is to be used, specifically the laws states that a POA has to be constructively served.

In principle this is a good law to protect our elders.

By constructively serving a new POA the elder person serves to notify the world that he/she has changed agents if this is indeed his/her intentions.

However in practice whenever Elder Financial abuse is performed, which is very often, according to statistics , this is often done in secret, usually a Power of Attorney form can be picked up at a stationary store, and excecuted in secret with or without the elder's consent who might be suffering from dementia or subject to manipulation and or undue influence and often times not remember even signing it..

To constructively serve a Power of Attorney would defeat the purpose that it is being used for by swindlers , and would tip off the victim's family/attorneys of what you intend to do,usually liquidate and convert the elder's assets.

So that the original agent of a Power of Attorneys does not often find out about the new POA until the elder's assets have all been vacated.

We all know the perpetrators have long since disappeared the money and the trail has grown cold by then.

I my case I had POA that my parents had given me in the year 2000, I never used it for anything other than for what it was intended for . It was never used to transfer property,close accounts or to benefit the agent.

In October 2004 a sibling, Al Fernandez, Jr. ( A social worker) and his partner William A. Hart had decided to appoint themselves to assume control of the elder's finances and acquired a new POA form and somehow had the elder sign it . The Elder who was being treated for dementia would later tell on record that she did not remember sign it.

The sibling and his partner went on a spending orgy and liquidated Certificate of Deposits, Bonds, Stock accounts,Bank accounts, transferred Real estate, jewelry , in short, most any asset that was within reach.

As being the original agent empowered by the POA given by the elders and their estate planning attorneys the new POA was not constructively served and it was not found out until it was time to file for the elder's taxes and was told that there was a POA with a newer date , causing the elders Income taxes to go deliquent as there was no body authorized or versed to file the elder's taxes.

In addition to creating a huge Tax liability for the elder by the liquidating of the elders's funds during the same time frame, and in a lump sum the elder's trust and equity was wiped out.

Is there any legal remedy to recover his assets from the Financial Institutions that held the elder's assets ?

Or is this a case of " I don't ask" and " You don't Tell " from the financial instition that held the elder's assets.

Since POA Statues regarding how POA are to be used stipulate that a POA must be constructively served, is this one of those laws that looks good on the books, but is in-effective in preventing elder theft?

Is this a case of tough luck for the elder, and better luck next time ?

Related articles....... POA a Theft License


this discussion will remain an open thread.......

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