Tag Archives: Power of Attorney
Recovering Attorney’s Fees in Power of Attorney Litigation: Virginia General Assembly Passes New Law Permitting the Recovery of Fees
The Virginia General Assembly passed a law in the 2019 legislative session that authorizes a successful plaintiff to receive an award of attorney’s fees in litigation under the Virginia Uniform Power of Attorney Act, where the court finds that the agent under the power of attorney breached his fiduciary duty. The law constitutes an addition to Virginia Code Section 64.2-1614, and states as follows: E. In a judicial proceeding under this chapter, if the court finds that the agent breached his fiduciary duty in violation of the provisions of this chapter, the court, as justice and equity may require, may …
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Virginia Supreme Court Clarifies Remedies In Power Of Attorney Lawsuits
The Virginia Supreme Court recently issued a ruling that clarifies that under the Virginia Uniform Power of Attorney Act, trial courts may award monetary damages against an agent under a power of attorney, but may not issue an injunction directing that the agent must return money. The issue arose due to language contained in the Virginia Uniform Power of Attorney Act, Section 64.2-1615(1), which provides that agents under powers of attorneys are “liable to the principal or the principal’s successors in interest for the amount required to [r]estore the value of the principal’s property to what it would have been …
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Be Careful With That Power of Attorney!: Arbitration Clauses and Nursing Home Lawsuits
On May 15, 2017, the Supreme Court of the United States handed down its opinion in Kindred Nursing Centers, L.P. v. Clark. This case addressed the issue of whether an agent acting pursuant to a power of attorney could bind an estate to an arbitration agreement. The facts of the case were simple. Beverly and Janis, family members of Joe and Olive respectively, each held their family member’s respective power of attorney. Joe and Olive moved into a nursing home operated by Kindred Nursing Centers, L.P. (“Kindred”). Beverly and Janis used their family members’ powers of attorney to sign an …
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Guardianship Petitions by Long Term Care Facilities
This blog post explains how long term care facilities (LTCFs) can consider utilizing guardianship and conservatorship petitions for problematic situations where a resident has named an agent under a power of attorney (POA), and the agent fails to pay the resident’s bills, thus jeopardizing the resident’s wellbeing. Independent living facilities, assisted living facilities, and nursing homes traditionally take steps to ensure that residents have enacted financial POAs, as well as healthcare POAs, upon admittance. What happens when an agent named under a POA fails to make payments for the resident’s stay at the LTCF? The LTCF can sue the resident, …
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Misconduct Remedies Against an Agent Under a Power of Attorney
In a prior blog post, I discussed the duties of an agent under a power of attorney. In this blog post, I discuss the remedies that people have against an agent under a power of attorney when the agent commits misconduct. The first issue is who has standing to pursue legal action against an agent under a power of attorney? Virginia has adopted a modified version of the Uniform Power of Attorney Act that spells out the categories of people who can seek judicial relief against an agent. Under Virginia Code Section 64.2-1614, the following are some of the parties …
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Duties of an Agent Under a Power of Attorney
Many average people are named as agents under a power of attorney for a family member or friend, and most have little to no idea what they are getting themselves into. Many people also are aware of the fact that a relative may serve as agent under a power of attorney for a family member or friend, and may be ignorant of how much financial mischief that person could commit with that authority. This blog post outlines the duties of an agent under a power of attorney. I will follow-up this blog post with another post in the coming weeks …
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Guardianships for Disabled Young Adults
Consider a common situation: Mom and Dad care for their severely disabled child, who is quickly approaching 18 years of age. Let’s call this hypothetical soon-to-be adult Jane. Jane has suffered from severe autism her whole life. She has been in special education throughout her entire school career and requires specialized and frequent medical care. Jane will never be able to live on her own or manage her finances. Jane’s parents will care for her indefinitely. Jane’s parents wonder if they need legal assistance to plan for Jane’s transition to adulthood. Without proper planning, Jane’s parents will face great difficulty once …
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B.B. King’s Estate: Murder Allegations and the Slayer Rule
Two of B.B. King’s children have recently alleged that King’s business manager and personal assistant poisoned him prior to his death on May 14, 2015. The allegations surrounding the blues legend’s death implicate the slayer rule: a rule in the vast majority of states that provides that if a person is convicted of murdering a testator (the person who executed a will), the murderer cannot inherit any portion of the testator’s estate, but rather is deemed to have predeceased the testator for purposes of the distribution of the testator’s estate.
Why a Guardianship Proceeding Could be a Precursor to a Will Change
Did you know that in Virginia, a person who is the subject of a guardianship and/or conservatorship can still have the requisite testamentary capacity to enact or amend his will? As a result, there’s a huge potential for mischief by those seeking to be appointed a guardian and/or conservator. First, some background: several years ago, the Virginia Supreme Court reiterated – in the case Parish v. Parish, 281 Va. 191 (2011) – that a person can still have testamentary capacity to make a will (that is, the required mental ability), even if a court has appointed a guardian and/or a …
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