Waiting for Atticus Finch

Harper Lee and Power of Attorney

Harper Lee Allegations Show the Importance of Proper Actions by an Agent Under a Power of Attorney

The media and publishing world has been abuzz the past few weeks with news that Harper Lee – the author of the famed novel To Kill A Mockingbird – plans to publish her first novel in over 55 years. Described as a sequel, the new novel Go Set a Watchman is set to be released this coming summer. Recently, several media outlets have published reports from acquaintances of the 88-year old Ms. Lee implying that publication of the new novel is contrary to Ms. Lee’s wishes.

AL.com reports:

Multiple residents of Monroeville who have known Harper Lee for years said Wednesday that they believe the 88-year-old author does not possess sufficient mental faculties to make informed decisions about her literary career.

Four people who knew Lee to varying degrees and live in or just outside the town where Lee has lived most of her life and on which she based Maycomb — the fictional setting of her seminal 1960 novel To Kill a Mockingbird — told AL.com Wednesday they believe Lee’s wishes for her career are not being respected.

Monroeville lawyer Tonja Carter has long represented Lee and has power of attorney over her affairs. But area residents who know the writer say that Carter has in recent years taken steps to keep her from seeing her friends and family, and become increasingly litigious on her behalf in a way that they do not believe Lee would have supported when she was younger and more alert.

Janet Sawyer, owner of the Courthouse Café in Monroeville’s compact town square, said she believes that Carter has taken even greater control over her life in the short time since her protective sister, Alice Lee, died in November at the age of 103.

Sawyer believes that the decision to publish “Go Set a Watchman,” described as a sequel to “To Kill a Mockingbird,” later this year was made by Carter alone. Carter did not respond to repeated telephone and email requests for comment Wednesday.

Source: “Hometown Friends Say Harper Lee Was Manipulated Into Publishing Second Book” by Connor Sheets, February 4, 2015.

The article proceeds to describe how some believe that Ms. Lee did not want the sequel published while she was alive. The allegations and statements in the article raise several interesting legal questions.

1) If Harper Lee didn’t want to publish Go Set a Watchman, should Ms. Carter have published it anyway?

First, some background discussion: AL.com reports that Ms. Carter is the agent under Ms. Lee’s power of attorney. A power of attorney is a legal document that permits the person signing it (the “principal”) to designate one or more persons to act on her behalf (referred to as “agents”). The article does not provide any additional background information about the terms of the power of attorney, the scope of the authority afforded to Ms. Carter as agent, etc.

Harper_LeeMany states have laws regulating powers of attorney (for example, Virginia has adopted the Uniform Power of Attorney Act), and in states that lack a statutory regime governing powers of attorney, agency principles of law usually apply. The Virginia Uniform Power of Attorney Act requires an agent to “act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest” (Va. Code Section 64.2-1612(A)(1). Therefore, under Virginia law, if Ms. Carter was actually aware of Ms. Lee’s expectation that the sequel not be published until her passing, absent potential extenuating circumstances (such as a shortage of assets to fund Ms. Lee’s care), the act of publishing the novel could violate the duties of an agent under a power of attorney.

Several qualifications are in order: first, the allegations in the article are just allegations, and we don’t know the motives of those making the allegations; second, Ms. Carter is an attorney who has ethical and legal obligations under her state’s rules of professional conduct (and therefore it’s prudent to assume that she would not want to put her legal career in jeopardy by her actions); third, we don’t know the language contained in Ms. Lee’s power of attorney (for all we know, the power of attorney could explicitly authorize the publication of the novel); and fourth, we don’t know what Ms. Lee has stated to Ms. Carter about her desires relating to publication (again, for all we know, she could have specifically, and consciously directed Ms. Carter to publish such).

This episode illustrates the potential risk of attorneys agreeing to serve in fiduciary capacities pursuant to their clients’ written estate planning instruments. Whether naming themselves as agents in a power of attorney, trustees in a trust, or executors in a will, attorneys should seriously consider the inherent risks of allegations of self-dealing and conflicts of interest, and should closely follow the ethical guidelines spelled out by their respective states’ bars. There are varied reasons why clients may ask their estate planning attorney to act in a fiduciary capacity (whether ranging from a lack of family members or friends that the client can trust, to the belief that the attorney, as a professional, will act in a more competent manner than others). Regardless of the client’s motives, however, an attorney acting in a fiduciary capacity may face significant public scrutiny for performing what could be entirely legitimate actions on behalf of a client.

2) What legal options are available to those close to Harper Lee, assuming her agent under her power of attorney was acting improperly?

If those close to a principal believe that the agent under her power of attorney has acted improperly, they can file a lawsuit seeking to limit or terminate the authority of the agent. Virginia law permits a broad array of people to institute such a lawsuit, including the principal’s guardian; conservator; spouse; parent; descendant; adult brother, sister, niece, or nephew; or a person named as a beneficiary to receive any property, benefit, or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate. Some states do not afford such a broad array of people standing to file a lawsuit against an agent.

In lawsuits brought against agents under a power of attorney, the agent will argue that she was simply acting in the best interests of the principal. Assuming the allegations against Ms. Carter (relating to not permitting Ms. Lee to see certain friends / visitors) are true, Ms. Carter would likely assert that she’s simply acting in Ms. Lee’s best interest by prohibiting visits that could negatively affect the health of an elderly, declining Ms. Lee. I have seen cases where that rationale is a rather legitimate one; and I’ve seen other cases where such a rationale is simply used as pretext by an abusive agent to conceal inappropriate behavior.

Harper_LeeIn any challenge to Ms. Carter’s authority, she would also possibly assert (depending on Ms. Lee’s estate planning documents) that Ms. Carter does not stand to gain financially from the publication of the novel, since (again, depending on the language of Ms. Lee’s estate planning documents), any proceeds from such would inure to the benefit of Ms. Lee, whose assets would pass to her heirs upon her death (and not to Ms. Carter as long as Ms. Carter is not named as a beneficiary in any of Ms. Lee’s estate planning documents). Any challengers may try to allege, however, that Ms. Carter would still stand to gain financially from publication of the novel, since (again, depending upon the language of the power of attorney), she may be entitled to reasonable compensation for acting as agent under the power of attorney (note that in Va. Code Section 64.2-1610, Virginia law specifically authorizes “reasonable compensation” to an agent under a power of attorney, unless the power of attorney provides otherwise). If Ms. Carter is performing an array of tasks relating to, and spending significant time on, activities such as coordinating publishing, marketing, etc., then it’s possible that she may be eligible for a decent sum of money as compensation. Of course, any challengers would likely argue that this is an act of self-dealing on her part, is a conflict of interest, does not serve the best interests of Ms. Lee, etc., and that she should be removed as agent under the power of attorney.

Let’s hope that there’s nothing improper going on with Ms. Lee. If nothing else, this episode should serve as a cautionary tale of the issues that can arise when attorneys agree to serve as agents under their clients’ powers of attorney.

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