What remedies are available if an agent with power of attorney abused power?
Full Question:
Answer:
As you may already know, when considering a petition for an involuntary conservatorship, the probate court will take evidence regarding the condition of the respondent (person needing help), the respondent's capacity to care for himself or herself or to manage his or her affairs, the respondent's ability to meet his or her needs without the appointment of a conservator.
Medical evidence about the respondent's condition and its effect on the ability to care for himself or herself can be from 1 or more physicians licensed in Connecticut. The examinations must be done with 45 days of the hearing. This requirement can be waived by the court but only if the judge clearly states why it is being waived.
In addition to medical evidence, the court may require an exam by a psychiatrist or psychologist. Though the repondent may refuse to undergo any examination ordered by the court.
If the Court finds by clear and convincing evidence that the respondent is incapable of managing his or her affairs, that his or her affairs cannot be managed adequately without the appointment of a conservator, and that the appointment of a conservator is the least restrictive means of intervention available to assist him or her in managing his or her affairs, the Court may appoint a conservator of the estate.
Likewise, if the Court finds by clear and convincing evidence that the respondent is incapable of caring for himself or herself, that he or she cannot be cared for adequately without the appointment of a conservator, and that the appointment of a conservator is the least restrictive means of intervention available to assist him or her in caring for himself or herself, the Court may appoint a conservator of the person.
When determining whether a conservator should be appointed, the Court will consider the following factors: (1) the abilities of the respondent; (2) the respondent's capacity to understand and articulate an informed preference regarding the care of his or her person or the management of his or her affairs; (3) any relevant and material information obtained from the respondent; (4) evidence of the respondent's past preferences and life style choices; (5) the respondent's cultural background; (6) the desirability of maintaining continuity in the respondent's life and environment; (7) whether the respondent had previously made adequate alternative arrangements for the care of his or her person or for the management of his or her affairs, including, but not limited to, the execution of a durable power of attorney, springing power of attorney, the appointment of a health care representative* or health care agent, the execution of a living will or trust or the execution of any other similar document; (8) any relevant and material evidence from the respondent's family and any other person regarding the respondent's past practices and preferences; and (9) any supportive services, technologies or other means that are available to assist the respondent in meeting his or her needs.
You may want to discuss the matter with a local attorney experienced in elder law issues. It may be possible to review the power of attorney given to your sister to determine if it was executed with undue influence of if the person given the powers under the power of attorney is guilty of abuse of that authority.
The obligations of the fiduciary duty as "attorney-in-fact" are to act in the best interests of the person giving of the power. If the power-of-attorney is silent as to the power to gift to directly to the agent himself, the state is likely to have cases that have come through the courts that have found gifting by such a power-of-attorney document are a breach of fiduciary duty, voidable, and perhaps, illegal. If the principal has passed away by the time the power of attorney abuse has been discovered, the principal's estate or the intended beneficiaries of the property may be able to sue the agent for breach of fiduciary duty, tortious interference with estate planning, or a number of other causes of action.
