Naming your trusted child as attorney-in-fact (AIF) under your durable power of attorney does not always protect him or her from being sued after you pass away. Siblings can and do challenge the actions of the AIF and claim your estate (their inheritance) should be worth more or have more than it does because the AIF/"favored child" made gifts to themselves, spent your money inappropriately, or didn't keep adequate track of assets spent during your life.
Yesterday, a lengthy decision from the Washington State Court of Appeals (In re Estate of Lowe) illustrated this fact when an AIF son assisted his mother with her finances, giving some to himself and spending some on her expenses, at her direction and request. The case involved hiding silver coins and bars in the chimney, moving them to a new location, accounting for them, selling them, and deciding who got them after the death of both the father and mother of the family. Many legal issues were discussed and decided. However, just one useful tidbit, a distinction is made between the AIF acting under his powers as AIF and a son merely following the directions of his mother regarding her own property. There is also a distinction between the role and duty of an AIF (under a durable power of attorney) and a personal representative (under a will), especially with regard to inventory and accounting of assets.
To protect yourself and your attorney-in-fact, take the time to learn the pitfalls of the role and give clear and detailed instructions regarding your wishes. Don't brush off a power of attorney as a one-size-fits-all "boilerplate" or "form". The attorney-in-fact won in court this time, but clearly a lot of money was spent in the process and the family relationships will never be the same.
Megan M. Lewis
Copyright © 2015 - 2023