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If someone’s holding “bearer” shares in some offshore company, I assume they’re up to no good (probably trying to cheat their ex’ or not pay taxes). And I’m not the only one who feels that way.

From an asset protection standpoint, the main advantage of bearer shares is the supposed ability to quickly and anonymously transfer ownership of your shares (just pick it up and walk away). That may be well and good while you’re alive, but if you drop dead, figuring out who owns your shares won’t be easy, as the litigants in the Griem case found out.

Griem v. Becker, — So.2d —-, 2009 WL 454517 (Fla. 3d DCA Feb 25, 2009):

At the probate court level the judge bought the argument that when it comes to bearer shares in a BVI company, possession = ownership, period, end of story. Which is a fair assumption, and what I would have guessed before reading the linked-to opinion. Not so, says the 3d DCA, in an opinion that’s a road map for anyone who ever has to deal with this issue in the future. The two big take-away points from this case are:

Florida law does NOT control the ownership issue:

The appellee relies on section 673.2011(1), Florida Statutes (2005), which states, “[I]f an instrument is payable to bearer, it may be negotiated by transfer of possession alone.” . . . This reliance, however, is misplaced. Under the UCC, “instruments” are unconditional promises or orders to pay a fixed amount of money and are addressed in Article 3 (chapter 673 of the Florida Statutes), as distinguished from “securities,” addressed in Article 8 (chapter 678 of the Florida Statutes). The shares in Conti-Tech are securities. Under section [678.1101], the local law of the issuer’s jurisdiction, BVI, governs claims regarding transfer of the Conti-Tech shares.

Determining ownership of bearer shares is a fact-intensive exercise:

On appeal the 3d DCA reversed the probate court’s summary judgment order expressly rejecting the argument that possession is “ten tenths of the law” when it comes to figuring out who owns bearer shares. Ownership of bearer shares turns out to be way more fact intensive than most of us would have guessed.

Simply stated, the mere possession of these BVI share certificates does not immunize the appellee from investigation or claim by the personal representative. The appellee’s affidavit raises more questions than it answers: since Conti-Tech had a U.S. securities account, did it file U.S. income tax returns in 2003, 2004, and 2005, potentially providing evidence linking the company to its shareholder? If Conti-Tech’s shareholder received any part of its income, would that not have been disclosed on his or her U.S. income tax return? FN6 Did Conti-Tech’s memorandum authorize bearer shares? Wouldn’t Merrill Lynch, Miami, have required a copy of the memorandum as part of the account-opening documentation for Conti-Tech’s securities account? Wouldn’t Conti-Tech’s registered agent and the depositary custodians have records revealing the beneficial holders and transfers? How could Becker have obtained her appointment as director effective over seven months after Mr. Griem’s death unless she delivered documentary evidence of her ownership of the shares to the registered agent of Conti-Tech before that? Does the registered agent have other certificates evidencing transfers of ownership or custodians in effect before Mr. Griem’s death?

Price v. Abate, — So.2d —-, 2009 WL 559908 (Fla. 5th DCA Mar 06, 2009)

In the linked-to case the 5th DCA broke new ground. The parties were litigating what the word “presence” means for purposes of witnessing a will under F.S. 732.502(1)(c):

Witnesses’ signatures.–The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

Apparently no one’s asked a Florida appellate court to rule on this issue before.

Based on the following testimony, the probate court concluded that even though the witnesses were in the same room as the testator when he signed the purported will, they weren’t in his “presence,” thus warranting summary judgment rejecting the will:

In seeking summary judgment, Flanigan’s heirs asserted that Price could not sustain her burden of proving that Flanigan’s purported lost will had been properly attested to. To support their claim, the heirs cited to the deposition testimony of the only living witnesses to the execution of Flanigan’s purported lost will, bank employees Dalila Ramos and Donna Fazio.

Ramos testified that Flanigan asked her to notarize a hand-written piece of paper which stated “that he was leaving basically everything that he owned to Fran Price.” Ramos testified that she did not remember if Flanigan signed the paper in her presence or not. Ramos further testified that after she notarized the document she called over a teller named Donna Fazio to act as a witness. Critical to this appeal, she further testified:

Q. Now, when you signed it, was Donna Fazio present?

A. No.

* * *

Q. And Donna Fazio did not see you sign the document; is that correct?
A. That is correct.

Donna Fazio’s deposition testimony was consistent with the testimony submitted by Ramos. In that regard, Fazio testified that Ramos summoned her by using a phone intercom, and that Ramos asked her to witness a document:

Q. You say by the time you got there, everything was already signed?

A. Yes, sir.

Q. Now, did you see anybody sign?

A. No.

Q. Were you present when anybody signed?

A. No.

The trial court concluded that entry of summary judgment in favor of the heirs and against Price was warranted because the uncontradicted record evidence demonstrated that Ramos and Fazio did not sign in the presence of each other because Fazio was not in the presence of Ramos when Ramos signed the document.

On appeal the 5th DCA upheld the probate court’s ruling based on the following rationale:

Price challenges this ruling, conceding that there are no cases in Florida which expressly define the term “in the presence of each other” for purposes of the statute but claiming that, given the physical proximity of the two witnesses, the determination of this issue involves genuine issues of material fact which should be determined by the trier of fact after hearing the actual testimony of the witnesses. We disagree.

The decision issued by our Supreme Court in State v. Werner, 609 So.2d 585 (Fla.1992), supports the trial court’s ruling. In that case, the Court was asked to define the word “presence” for purposes of the lewd and lascivious act statute, section 800.04(3) of the Florida Statutes, which provides that any person who knowingly commits any lewd or lascivious act “in the presence of” any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree. The State argued that the plain and ordinary meaning of “presence” is “the part of space within one’s immediate vicinity.” Upon review, the Court rejected the State’s argument and concluded that, while the child need not be able to articulate or even comprehend what the offender is doing, the child must see or sense that a lewd or lascivious act is taking place for a violation to occur.

Application of this reasoning to the instant case supports the trial court’s conclusion that the mere fact that Ramos and Fazio were in the vicinity of one another at the time Ramos signed Flanigan’s will was insufficient to satisfy the statutory requirement that Ramos sign the will in Fazio’s presence. Accordingly, we affirm the trial court’s ruling.

I think the 5th DCA got this one right, and I’m sure most Florida probate lawyers would agree with me. Being “present” as a witness when someone’s signing his will means more than being in the same room at the same time, the witness has to see the person sign his will, and understand in a general sense what the heck is going on. I think it’s also important to note that in a roundabout way the 1st DCA came to a similar conclusion in 2005 with respect to the minimum requirements for witnessing a will [click here], although that opinion wasn’t nearly as thoughtful and well-articulated as this one.

Edelstein v. Beagell, — So.2d —-, 2009 WL 500913 (Fla. 1st DCA Feb 27, 2009)

Not all probate orders are created equal. Some are appealable, and some aren’t. The controlling rule is broadly stated in Florida Rule of Appellate Procedure 9.110(a)(2) as follows:

(a) Applicability. This rule applies to those proceedings that . . . (2) seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code;

The rule seems simple, but figuring out which orders "finally determine a right or obligation of an interested person" is easier said than done. In the linked-to case the appellant guessed wrong and had her appeal dismissed by the 1st DCA. Here’s how the court explained its ruling:

Having considered the appellant’s response to this Court’s order of December 11, 2008, we dismiss this appeal for lack of jurisdiction. The order on appeal, entitled “Final Order on Petition for Determination of Beneficiaries,” denied the petition below without making any final determination as to the beneficiaries of the estate. Therefore, the order on appeal did not “finally determine a right or obligation of an interested person,” so as to be appealable under Florida Rule of Appellate Procedure 9.110(a)(2). See Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005); Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003).

Do we need a better rule?

A subcommittee of the Probate and Trust Litigation Committee has been looking at ways to add a bit more certainty to the question of when a probate order is or is not appealable. They’ve been working on this since 2007 and still no changes, so don’t hold your breath. But in the meantime committee members Sean Kelley, Tom Karr and Peter Sachs have produced an extremely thorough 38-page white paper [click here] that’s worth holding on to. Their analysis of the existing rule and how it’s been applied by each of the DCAs is a must read the next time you’re trying to figure out whether to file that notice of appeal . . . or not.

Greenberg Traurig, P.A. v. Bresnahan, — So.2d —-, 2009 WL 383622 (Fla. 4th DCA Feb 18, 2009)

In the linked-to case the trustee asserted the "advice of counsel defense" to a lawsuit alleging a breach of fiduciary duty. Here’s how the defense was asserted:

Within that trust litigation, D’Andrea asserted the “advice of counsel defense,” pointing to his consultation with Greenberg Traurig and, specifically, attorney Francis B. Brogan, Jr. D’Andrea moved for summary judgment, and provided a detailed affidavit from attorney Brogan. Within that affidavit, attorney Brogan addresses the legal advice given regarding the property at issue in the trust litigation.

This defense may ultimately work, but it comes with a risk: once you open the door to your lawyer’s advice by using it as an affirmative defense, you’ve waived the attorney-client privilege within the scope of that advice. And that may be OK, but be ready to litigate the "scope" of your waiver. Which is what happened in this case:

What followed was a subpoena for deposition duces tecum and notice of taking deposition on the non-party Records Custodian for Greenberg Traurig, P.A. The subpoena sought broad categories of discovery relating to the Trust.

Greenberg Traurig moved to quash the subpoena and for protective orders, arguing that D’Andrea’s limited waiver of the attorney-client privilege applied only to the transaction surrounding the specific property at issue in the underlying litigation. Paradise Divers, Inc. v. Upmal, 943 So.2d 812, 814 (Fla. 3d DCA 2006). Nevertheless, the firm produced documents, though it redacted portions which it deemed beyond that limited waiver. Following the trial court’s in camera inspection of the redacted documents, it ordered Greenberg Traurig’s Record Custodian to produce all records, in unredacted form.

And here’s why the 4th DCA quashed the probate court’s order:

We quash the portion of the order that requires the unredacted production of documents GT 01, GT 05, GT 11-12, and GT 13-30. The subject matter associated with documents GT 01 and GT 11-12 is beyond the scope of the express limited waiver. Paradise Divers, 943 So.2d at 814. The remaining redactions concern internal housekeeping information and billing entries and fee amounts, which in this case should remain confidential. See generally Paskoski v. Johnson, 626 So.2d 338, 339 (Fla. 4th DCA 1993); see also Jacob v. Barton, 877 So.2d 935 (Fla. 2d DCA 2004).

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Garcia v. Celestron, — So.2d —-, 2009 WL 249211 (Fla. 3d DCA Feb 04, 2009)

In the linked-to opinion the 3d DCA provides a solid summary of the procedural steps and law governing adjudications of ambiguous wills in Florida. This is a bread-and-butter issue for most probate litigators, so it’s helpful to have an appellate opinion you can whip out for your judge or opposing counsel if anyone needs a quick refresher course on how these cases should be handled.

Step One: The court needs to rule on whether the disputed provisions of the will are ambiguous:

We affirm the trial court’s ruling that the disputed provisions of the will are ambiguous . . . The will left the decedent’s house to his widow, and should she predecease him, the property was to be divided among six named family beneficiaries. The will then provides as follows:

I further leave a life estate in said property to my daughter, Mercy Maqueira [Mercy Garcia], so that she may live in and enjoy this property…. Upon her death, the property shall be sold and the proceeds divided equally among those living at the time of my death so named herein…. If Mercy so desires, she may sell this property at anytime and divide the proceeds as above stated.

Step Two: If the will’s ambiguous, you’re entitled to present parole evidence at trial to determine it’s meaning:

The question presented to the trial court was whether the language “so that she may live in and enjoy this property” made the life estate determinable, requiring Mercy to either live in the property or sell it, or whether the term is one of clarification, allowing her to choose whether to live in it or not. The trial court concluded that these terms taken together are ambiguous and took evidence to determine the testator’s intent. Based upon the evidence, the trial court concluded that the decedent intended that Mercy be provided with a place for her and her children to live, and that if Mercy did not live in the property, it should be sold and the proceeds equally distributed among the six listed beneficiaries. Evidence adduced at trial revealed that Mercy did not live in the house, but rented it out, and that she had no intent to live there. The trial court ordered the property to be sold because Mercy did not live in it and evidenced no intention to live in it in the future. Mercy Garcia appealed.

We agree with the trial court that the provisions of the will are ambiguous. As such, the trial court correctly received parol evidence in order to resolve the apparently contradictory provisions. See Perkins v. O’Donald, 82 So. 401 (Fla.1919) (holding that parol evidence may be received if the will is in some way ambiguous, in order to ascertain the testator’s intent); Harbie v. Falk, 907 So.2d 566 (Fla. 3d DCA 2005); Campbell v. Campbell, 489 So.2d 774, 776-777 (Fla. 3d DCA 1986); Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983); In re Estate of Rice, 406 So.2d 469 (Fla. 3d DCA 1981). The trial court based its findings on competent, substantial evidence, and we thus affirm the final judgment.

In re Kurzon, 399 B.R. 274 (Bankr.M.D.Fla. Apr 17, 2008)

When it comes to enforcing money judgments: bankruptcy is the last refuge of a scoundrel. But if the particular scoundrel you’re trying to track down is a former personal representative who’s been surcharged by your probate judge, you can tell him to wipe that smirk off his face because "no", not even bankruptcy will save him now.

In the linked-to order the bankruptcy court ruled that a $60,000 money judgment previously entered against a Chapter 7 debtor in his capacity as personal representative of his late aunt’s probate estate was NOT subject to discharge. Here’s why:

The Plaintiff, to prevail on its 11 U.S.C. Section 523(a)(4) fraud or defalcation nondischargeability count, must establish by a preponderance of the evidence: (i) the Debtor was acting in a fiduciary capacity; and (ii) while acting in a fiduciary capacity, he committed fraud or defalcation. In re Goodwin, 355 B.R. 337, 343 (Bankr.M.D.Fla.2006). The fiduciary relationship must exist at the time the act creating the debt was committed. Guerra v. Fernandez-Rocha (In re Fernandez-Rocha), 451 F.3d 813, 817 (11th Cir.2006).

.     .     .     .     .

The Debtor was obligated to make distribution expeditiously to the Plaintiff, who was a beneficiary of the Will, pursuant to Florida Statute Section 733.602(1). The Probate Court found the Debtor failed to make distribution of $60,000.00 to the Plaintiff. He was removed as the Personal Representative as a result of such failing. His failure to make distribution to the Plaintiff of funds that were entrusted to him as the Personal Representative constitutes a defalcation of fiduciary duty. Fla. Stat. §§ 733.602(1), 733.608(1)(c), 733.609(1); Quaif, 4 F.3d at 955.

The Judgment is a final judgment on the merits rendered by a court of competent jurisdiction. The Judgment litigation and this adversary proceeding involve the same operative facts and the same parties. The Judgment issued by the Probate Court is binding in this proceeding pursuant to the doctrines of res judicata and collateral estoppel. The Judgment is entitled to preclusive effect and the Debtor is barred from challenging it. The Plaintiff has established the Judgment Debt is nondischargeable pursuant to 11 U.S.C. Section 523(a)(4).

The Plaintiff’s documentary evidence, independently of the Judgment, establishes the Judgment Debt is nondischargeable pursuant to 11 U.S.C. Section 523(a)(4). The Debtor did not act in the best interests of the estate. He was required to keep the estate funds separate from his personal and business funds. Fla. Stat. § 733.602(1); Lahurd, 632 So.2d at 1104. He diverted all of the cash assets of the estate to his personal and business accounts, without the knowledge or the consent of the estate beneficiaries, and dissipated the funds for his own personal benefit. Such actions constitute defalcations of his fiduciary duty.

The Debtor concealed such diversion and dissipation through materially false and fraudulent accountings filed with the Probate Court. He failed to settle the estate and distribute the assets to the estate’s beneficiaries and claimants. The Judgment Debt results from his improper conduct. The Judgment Debt is nondischargeable pursuant to 11 U.S.C. Section 523(a)(4). In re Valdes, 98 B.R. at 80.

Especially in large or fairly complex estates or trusts, the ultimate value of your client’s inheritance often depends in large part on how income and expense items are accounted for and allocated among the beneficiaries. Spotting these fiduciary accounting issues in advance (either as an estate planner or probate lawyer) is easier said than done.

One way to tackle that problem is to have a list of hot-button fiduciary accounting scenarios to be on the look out for. Which is exactly what William C. Carroll and John W. Randolph, Jr., deliver in an excellent article they published in this month’s Florida Bar Journal. In Things That May Surprise You About Florida’s Principal and Income Act and Related Accounting Law, Part I, the authors explain how Florida’s Principal and Income Act would apply (in often unexpected ways) in each of the following scenarios:

  1. Specifically Devised Real Estate
  2. Rental Real Estate
  3. Distributions Received by a Private Trustee from Investment Entity and a Targeted Entity
  4. Allocation of Receipts at Decedent’s Death
  5. Death of an Income Beneficiary
  6. Pecuniary Amounts

Here’s an excerpt from the article’s introduction:

In 2002, the Florida Legislature adopted the Florida Uniform Principal and Income Act, effective on January 1, 2003 (the act). The act, which is found in F.S. Ch. 738, is a modified version of the Uniform Principal and Income Act (1997) [click here]. The statutory sections of the act allocate trust and estate receipts and disbursements between income and principal. Additionally, the act contains provisions that allow a trustee to make adjustments between income and principal (§738.104) and to convert a trust to a unitrust (§738.1041). Sections 738.104 and 738.1041 are beyond the scope of this article.

It is significant to note that the statutory sections of the act are “default” sections, meaning that the provisions of Ch. 738 only apply if the terms of the trust or will do not contain a different provision or do not give the fiduciary a discretionary power of administration. It is critically important that attorneys practicing in the trusts and estates area have a working knowledge of the act. Through extensive examples, this two-part article will explore the inner workings of some of the more significant provisions of the act. These examples assume that the will or trust is silent as to allocating the receipt or disbursement at issue to either income or principal, and does not give the fiduciary a discretionary power of administration.

Fintak v. Wachovia Bank, N.A., Slip Copy, 2009 WL 413599 (M.D.Fla. Feb 18, 2009)

Say you have a trust that owns two CDs that together are worth a little over $200,000 and Wachovia pays them out to one of your three co-trustees . . . and he runs off with the loot. Now assume the bank wasn’t supposed to pay those CDs unless at least two of the co-trustees signed off on the transaction. Oops!!

Most of us – whether we represent the bank or the trust – would intuitively know there’s a lawsuit lurking around in there somewhere, but actually formulating that lawsuit (or predicting what the claims will be if you’re playing defense) is how lawyers add value. Once you know what the claims will be, both sides can evaluate the risks of winning/losing and negotiate a settlement  before a lot of money, time and effort is poured into pre-trial motion practice.

And that’s where the linked-to order comes into play: we now have a battle-tested road map for evaluating this type of case. The plaintiffs in this case sued Wachovia on the following three grounds:

  • conversion (Count I),
  • breach of contract (Count II), and
  • negligence (Count III)

Wachovia sought to dismiss the conversion and negligence counts . . .  and lost. Here’s why the court said the claims stood.

Conversion:

In Count I, the plaintiffs allege that Wachovia is liable for [Wachovia’s] conversion of the trust’s funds in violation of Section 673.4021, Florida Statutes. (Doc. 2, ¶ 13) The defendant argues that the conversion claim fails because no conversion action arises from a mere obligation to pay money and because the plaintiffs “fail to describe with particularity any identified, specific money.” (Doc. 7 at 3) The statute provides:

The law applicable to conversion of personal property applies to instruments. An instrument is also converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.

§ 673.4021, Fla. Stat . Under the Florida Commercial Code, a certificate of deposit is an “instrument.” See § 673.1041, Fla. Stat .

The plaintiffs allege that Wachovia converted the certificates of deposit by allowing Edmund Fintak to redeem the certificates without obtaining the signatures of two trustees. Construed most favorably to the plaintiffs, the allegations in the complaint establish that [Wachovia] permitted Edmund Fintak to redeem the certificates of deposit and that Edmund Fintak lacked the authority to receive payment without the signature of at least one more trustee. Accordingly, the motion to dismiss Count I is DENIED.

Negligence:

In Count III, the plaintiffs allege that [Wachovia] negligently failed to comply with the terms of the certification of trust. (Doc. 2, ¶¶ 22-29) Moving for dismissal of Count III, Wachovia argues that the economic loss rule bars the plaintiffs’ negligence claim. However, the economic loss rule primarily applies “to limit actions in the product liability context.” See Moransais v. Heathman, 744 So.2d 973, 983 (Fla.1999); Ron’s Quality Towing, Inc. v. Se. Bank of Fla., 765 So.2d 134, 136-37 (tort claims against bank not barred by the economic loss rule). Wachovia fails to show that the economic loss rule bars the plaintiffs’ negligence claim. See Fed. Ins. Co. v. NCNB Nat’l Bank of N.C., 958 F.2d 1544, 1546 (11th Cir.1992) (applying Florida law and recognizing a negligence action against a bank for bank’s failing to obtain two hand signatures before paying on corporate checks). Accordingly, Wachovia’s motion to dismiss Count III is DENIED.

Morris v. Knight, — So.2d —-, 2009 WL 321586 (Fla. 4th DCA Feb 11, 2009)

Florida probate judges get a huge amount of deference when deciding whom to appoint as guardian. So if your client is on the losing end of an order appointing someone else guardian, an appeal is probably a waste of money. Here’s how this point was made in the linked-to opinion:

 The standard of review here is abuse of discretion. In re Guardianship of Sitter, 779 So.2d 346 (Fla. 2d DCA 2000). The appointment of guardian is a discretionary act of the trial court, which must be supported by logic and justification and founded on substantial competent evidence. Id. at 348. The trial court’s decision should be reviewed for reasonableness. Id. And the appellate court should not find an abuse of discretion unless “no reasonable person would take the view adopted by the trial court.” Wilson v. Robinson, 917 So.2d 312 (Fla. 5th DCA 2005).

Bottom line, figure your client has only one real shot in this type of case. Don’t count on an appellate court second guessing your judge.

Family Preference in Guardianship Proceedings:

Once your client realizes that yes, what your probate judge thinks really matters, and no, an appeal is probably not a good idea, then hopefully everyone will focus on what’s most important: the ward’s best interests. It doesn’t matter if your client is related to the ward [click here] or if the ward executed a pre-need guardian declaration naming your client his or her guardian [click here], if the judge decides it’s in the ward’s best interests to appoint someone else as guardian, that’s probably the end of the story. Here’s how the 4th DCA made this point:

Under [F.S. § 744.312], “a person who is related by blood or marriage to the ward” does receive preference in appointment; however, the inquiry does not end there. The court also has the discretion to give preference to a non-relative who possesses particular experience or ability to serve as guardian. See, e.g., Treloar v. Smith, 791 So.2d 1195 (Fla. 5th DCA 2001) (finding that while next of kin are given first consideration, statute does not mandatorily require that such an appointment be made; rather, statute specifically provides that court may appoint any person who is qualified, whether related to the ward or not). Moreover, it is the best interest of the ward that trumps other considerations in the appointment of a guardian. See, e.g., In re Guardianship of Stephens, 965 So.2d at 852 (“The best interests of the Ward-which include choosing a qualified guardian for the Ward-come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.”).

In this case, Morris and Glinton argue that they are better fit than Knight to serve Barker’s interests because they plan to move her to a better nursing home. Even setting aside the trial court’s finding that both Morris and Glinton are unfit to become Barker’s guardian, they have not demonstrated how simply moving Barker from one facility to another would best serve her interests. Morris and Glinton have maintained minimal involvement in Barker’s care, whether family or not, and they are not now in the position to serve Barker’s best interests, whether family or not. It is thus our view that the trial court was reasonable in concluding that Barker’s care and interests would be best left up to Knight. See In re Guardianship of Stephens, 965 So.2d 847, 849 (Fla. 2d DCA 2007) (finding that as long as the record contained competent evidence to support the trial court’s decision to appoint a non-relative as guardian, there is no abuse of discretion).

Texas probate litigator J. Michael Young wrote here on his Texas Probate Litigation Blog about a recently published AARP research piece entitled Power of Attorney Abuse: What States Can Do About It. Here’s an excerpt:

The primary goal of this report is to inform state legislators, policymakers, practitioners, and advocates about the [Uniform Power of Attorney Act (UPOAA), click here]. provisions that protect against POA abuse and promote autonomy, and to support enactment efforts within the states. The secondary goal is to offer legal professionals information about their own state’s law and the laws of other states. The latter information may foster inclusion of additional protections in the POA those professionals draft for clients, as well as inform advocacy efforts by the-state bar association or other organizations.

Toward those goals, this report highlights the problem of PO A abuse, explains why the UPOAA was developed, and identifies and discusses the UPOAA provisions related to protecting against POA abuse and promoting autonomy. It provides a series of charts that compare the state POA laws in effect on December 31, 2007, to each relevant provision of the UPOAA, as well as a master chart for all provisions. Finally, the report’s appendixes include tips for advocates who desire to promote adoption of the UPOAA provisions in their state, a document titled "Why States Should Adopt the Uniform Power of Attorney Act (2006)," and a chart of citations to state POA laws.

Last year the UPOAA reporter, Prof. Linda Whitton of Valparaiso University – Law School, published an excellent article discussing the perceived shortcomings of current power-of-attorney statutes and how the UPOAA addresses those issues. Entitled The New Uniform Power of Attorney Act: Balancing Protection of the Principal, the Agent, and Third Persons, it’s another solid resource for anyone working on a particularly thorny power-of-attorney matter.

Why read this stuff? Issue spotting, issue spotting, issue spotting . . .

It doesn’t matter if you’re an estate planner or probate litigator, spotting the issues most relevant to your client’s interests is how we really add value as lawyers. The linked-to materials highlight the planning and litigation issues to think about in connection with powers of attorney, be it up front in the planning stage or at the back end when fraud or abuse is detected.