Estate of Shefner v. Shefner-Holden, — So.2d —-, 2009 WL 322153 (Fla. 3d DCA Feb 11, 2009)

When is probate litigation a compensable “service” to the estate?

There were two issues at play in the linked-to opinion. One was whether the PR’s were entitled to payment of their attorneys fees after successfully defending against a claim that F.S. 732.802 (Florida’s Slayer Statute) precluded them from inheriting under their father’s will because they assisted in his suicide. (By the way, I previously wrote here about a similar assisted-suicide/Slayer Statute case out of Wisconsin . . . the plaintiffs lost that one too.)

As is always the case in this type of fee dispute, the question was whether this litigation “rendered services” to the estate [click here]. According to the 3d DCA the answer was . . . yes. Here’s why:

In probate matters, section 733.106, Florida Statutes (2003), controls the question of attorney’s fees. Subsection (3) states: “Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” An attorney may render services to an estate by: (1) bringing about an enhancement in value or an increase in estate assets, or (2) actions which establish and effectuate the decedent’s testamentary intent. See, e.g., Estate of Brock v. Brock, 695 So.2d 714 (Fla. 1st DCA 1996); Segal v. Levine, 489 So.2d 868 (Fla. 3d DCA 1986); In re Estate of Lewis, 442 So.2d 290 (Fla. 4th DCA 1983).

.  .  .  .  .

[A]s a result of Deborah and Frank’s defense of the Slayer Statute claim, the terms of the decedent’s will were upheld. Thus, under section 733.106(3), Deborah and Frank are entitled to reimbursement of the attorney’s fees and expenses for defending the claim. We, therefore, reverse the order denying attorney’s fees.

But can you dip into the homestead sales proceeds to pay the lawyers?

The second issue decided by the 3d DCA was whether the following clause in the decedent’s will was the equivalent of a direction that the homestead property be sold and distributed to his heirs (thus stripping the sales proceeds of their creditor-protected status) or a devise of homestead property that was subsequently sold (thus preserving the creditor-protected status of the sales proceeds):

“I give my son, FRANK SHEFNER, JR. my house at 3420 SW 2nd Street, Miami, Florida. If and when the house is sold by my son, he will divide the proceeds equally among my children. My son is not to be forced to sell the house against his will.”

According to the 3d DCA, this was a devise of homestead property, so when Frank subsequently sold the house and split the proceeds with his siblings, the funds retained their creditor-protected status and were thus NOT subject to court ordered payment of probate-related attorneys fees.

It is well settled that homestead property devised to an heir is protected from forced sale to pay creditors’ claims of the decedent and administrative expenses of the estate under Article X, Section 4 of Florida’s Constitution. See, e.g., Pub. Health Trust of Dade County v. Lopez, 531 So.2d 946 (Fla.1988); Engelke v. Engelke, 921 So.2d 693 (Fla. 4th DCA 2006); Thompson v. Laney, 766 So.2d 1087 (Fla. 3d DCA 2000). Heirs are those persons entitled to receive property under the laws of intestacy. §§ 731.201(18), 732.103(1), Fla. Stat. (2003); Snyder v. Davis, 699 So.2d 999, 1003 (Fla.1997). Thus, when devised to a qualified heir, decedent’s homestead property is not distributed as part of the decedent’s estate, and passes directly to the designated heir. See McKean v. Warburton, 919 So.2d 341, 347 (Fla.2005); Estate of Hamel v. Parker, 821 So.2d 1276, 1280 (Fla. 2d DCA 2002).

The heir’s sale of the property, after the decedent’s death, does not change the legal consequences of the bequest from the decedent to the heir. After the decedent’s death, the heir has legal ownership of the property, and he or she may sell it without regard to decedent’s creditors or administrative expenses. See Thompson, 766 So.2d at 1088 (concluding that heir, to whom decedent’s residence was devised, “was entitled to sell the homestead property … and keep the proceeds of the sale); Estate of Tudhope v. Rudkin, 595 So.2d 312 (Fla. 2d DCA 1992) (holding that proceeds derived from sale of decedent’s homestead property directly devised to decedent’s minor children could not be reached by decedent’s creditors).

When a testator directs that his or her homestead be sold and the proceeds distributed to devisees, the property loses its constitutional protection. In such cases, the decedent is devising money, not homestead property, and the proceeds may be subject to the claims of decedent’s creditors and administrative expenses. Knadle v. Estate of Knadle, 686 So.2d 631, 632 (Fla. 1st DCA 1996) (finding that because decedent specifically directed that her homestead be sold and distributed as part of her residue estate, proceeds became subject to the claim of decedent’s creditor); Elmowitz v. Estate of Zimmerman, 647 So.2d 1064, 1065 (Fla. 3d DCA 1994) (stating that homestead property devised to trust in favor of decedent’s sister and two sons “lost its homestead status and became merely another asset of the trust”).

Here, Frank is a qualified heir, and the decedent’s will directed that Frank not be forced to sell the house. Therefore, the homestead property passed directly to Frank, and never became a part of decedent’s probate estate. Because the property was not a part of decedent’s probate estate, the trial court properly concluded that the proceeds from the subsequent sale of the property could not be used to pay creditors’ claims or administrative expenses of the estate.

Crescenze v. Bothe, — So.2d —-, 2009 WL 284858 (Fla. 2d DCA Feb 04, 2009)

Trust beneficiaries can avoid being sidelined in litigation involving their trusts by moving to "intervene" in the case under Civ.P. Rule 1.230. Here’s what the rule says:

Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

As I’ve previously written, if a trust beneficiary doesn’t intervene in the case he or she will probably be stuck with the outcome [click here].

In the linked-to case the trust beneficiary did exactly what she was supposed to do, she filed a motion seeking to intervene in litigation involving her trust. The probate court denied her motion based on what most of us would say was an "unorthodox" reading of Florida’s probate code (proving once again that no matter how right you may be on the law, you can never predict with absolute certainty what will happen once you step through those courtroom doors). Here’s how the 2d DCA explained its rationale for reversing the probate court’s order:

On appeal, Crescenze argues that the circuit court erred in denying her motion to intervene. We agree. Crescenze is a beneficiary of the trust, and “Florida has long followed the rule that the beneficiaries of a trust are indispensable parties to a suit having the termination of the beneficiaries’ interest as its ultimate goal.” Fulmer v. N. Cent. Bank, 386 So.2d 856, 858 (Fla. 2d DCA 1980) (citing Byers v. Beddow, 142 So. 894, 896 (Fla.1932), which held that a court called upon “to dissolve or terminate a trust … must decline to act when there are, or may be, persons interested in the trust who are not before the court”). “Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder.” Sudhoff v. Fed. Nat’l Mortgage Ass’n, 942 So.2d 425, 427 (Fla. 5th DCA 2006).

Because Crescenze is a beneficiary of the trust and therefore an indispensable party to the action seeking to terminate or revoke the trust, we reverse the circuit court’s order denying Crescenze’s motion to intervene and remand for further proceedings consistent with this opinion.

The circuit court concluded that Crescenze’s request to intervene was barred because it was not filed prior to the expiration of the two-year statute of limitations set forth in section 733.710(1), Florida Statutes (2005). However, it is clear from the language of the statute and its place in chapter 733 of the Probate Code that section 733.710(1) applies exclusively to claims against an estate in a probate proceeding and has no application in a civil action to terminate a trust. See also Henry P. Trawick, Jr., Trawick’s Redfearn Wills and Administration in Florida § 2:11 (2008-09 ed.) (recognizing that “[s]everal statutes of limitation apply only to probate matters” and discussing section 733.710).

Chicago-area probate lawyer Joel A. Schoenmeyer wrote here on his Death and Taxes Blog about an article discussing why even probate lawyers feel the heat as our economy continues its downward spiral: Tough times making even probate practice riskier.  One particular risk the linked-to article points out is worth focusing on:

Before the bottom started falling out of the real estate market, a probate lawyer who was dilatory in dealing with an estate could point to the fact that the property had increased in value while he fiddled. Not any more. In some cases, property values are fluctuating tens of thousands of dollars in a month. Beneficiaries do not take kindly to seeing their nest egg evaporating in plain sight. While the estate’s lawyer can’t determine when a property will sell or for what price, he does have some say over when it gets on the market, and the sooner the better, according to White, who is based about 400 kilometres northeast of Vancouver.

And if you think estate beneficiaries won’t sue over plunging values, think again. Back in 2006 I wrote here about a New Hampshire priest serving as executor of an estate who was tagged with a $1,256,000 surcharge judgment after the estate’s stock portfolio dropped in value from $6.5 million to $500,000 on his watch. And guess who the priest sued for malpractice? Who else, his probate lawyer.

I don’t know of a better way to quickly get your arms around the hot-button issues driving today’s estate-tax planning world [and current reform proposals, click here] than the three white papers listed below, all of which were prepared and published by the Joint Committee on Taxation, a nonpartisan committee of the United States Congress. These papers do a good job of explaining highly technical estate tax issues in clear, easy to understand prose that even a U.S. senator can understand.

Taxation of Wealth Transfers Within a Family: A Discussion of Selected Areas for Possible Reform (JCX-23-08), April 2, 2008.

This paper is divided into two parts. The first part describes a prominent feature of the current Federal estate and gift tax system, the partially unified credit against estate and gift tax, and evaluates two possible reforms to that credit. One possible reform to present law’s partially unified credit would be to make the credit fully unified. A second possible reform to the unified credit, referred to as portability, would allow a surviving spouse to benefit from unused exemption amount of the first spouse to die. The second part of this document sets forth a discussion of liquidity to pay estate tax when estates consist largely of farms or other businesses.

Description and Analysis of Alternative Wealth Transfer Tax Systems (JCX-22-08), March 10, 2008.

This paper addresses broad design issues such as rates, exemption amounts, the treatment of farms and family businesses, and alternatives to the present estate and gift tax system. These alternatives include an inheritance tax, an income inclusion approach (under which gifts and bequests are included in the income of the recipient), and a deemed realization system (under which a gratuitous transfer is treated as a realization event and the transferor is taxed on any gain in the property transferred, generally at rates applicable to capital gains).

History, Present Law, and Analysis of the Federal Wealth Transfer Tax System (JCX-108-07), November 13, 2007.

This paper describes the history of the U.S. Federal estate and gift tax system, summarizes the present estate and gift tax rules, and sets forth data and an economic analysis related to wealth transfer taxation.

Hays v. Lawrence, — So.2d —-, 2009 WL 211048 (Fla. 5th DCA Jan 30, 2009)

The probate bar has been mulling over the question of if, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing fee motions in civil litigation, applies to contested probate and trust proceedings.  This is an important issue; the last thing any lawyer wants to do is blow past a deadline for claiming fees on behalf of his client. Here’s what the rule says:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

Then a few months ago comes the Donkersloot opinion, a case out of the 2d DCA implying that Civ. Pro. Rule 1.525 applies to trust litigation (this was a first).  In the context of writing about that case I also linked to the excellent work being done by a subcommittee of the RPPTL section looking at possible statutory fixes [click here].

Then the Winter 2009 edition of ActionLine contained an article by Jon Scuderi, Esq., Goldman, Felcoski & Stone P.A., Naples, FL and Rebecca Y. Zung-Clough, Esq., Wealth Strategist, Northern Trust, NA, Naples FL, entitled Does Florida Rule of Civil Procedure 1.525 Apply to Probate and Trust Proceedings? Their conclusion: YES!

And now, in the linked-to case above, the 5th DCA has weighed in on whether Civ. Pro. Rule 1.525 applies to adversary probate proceedings. Their conclusion: YES!  Here’s an excerpt:

Appellants filed a petition for administration, claiming, in part, that a handwritten document dated August 13, 1978, was the last will of James Douglas Lawrence. Appellants’ petition requested that the court admit the handwritten document to probate and appoint them as personal representatives of Lawrence’s estate. On the same day, Appellants filed a declaration that the proceeding was adversary. After a trial was held on the petition in accordance with Florida Probate Rule 5.025, the court issued a final order denying Appellants’ petition for administration and refusing to admit the handwritten document to probate. Appellants appealed the decision to this Court, which ultimately dismissed the appeal on March 1, 2007.

On March 29, 2007, Appellants’ attorneys filed a petition for order authorizing the payment of attorney’s fees and expenses pursuant to section 733.106(2), Florida Statutes (2007). Appellees moved to strike the petition, arguing, in part, that the petition for fees and costs was untimely because it was filed seven months after the final order was entered instead of within thirty days as required by rule 1.525. The trial court granted the motion to strike.

The central issue framed by the parties is whether the rules of civil procedure applied to the proceeding below. The resolution of this issue turns on whether the underlying dispute in probate court was an adversary proceeding. In a probate action, if the case is determined to be an adversary proceeding, it “shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.” Fla. Prob. R. 5.025(d)(2). Notwithstanding Appellants’ prior declaration that the dispute was adversary, they urge that it was not. We disagree. See Fla. Prob. R. 5.025(b) (proceedings are adversary if declared as such).

Contrary to Appellant’s argument, In re Estate of Beeman, 391 So.2d 276 (Fla. 4th DCA 1980), is distinguished. There, our sister court addressed the issue of whether the rules of civil procedure applied in a probate proceeding to determine fees of counsel for the estate. In ruling that the civil rules did not apply, the Beeman court emphasized that the proceeding below had not been “designated” an adversary proceeding. We think this finding distinguishes Beeman from this case. Here, the proceeding was declared as an adversary proceeding to determine the validity of the purported will and tried as such. Under these circumstances, the rules of civil procedure, and specifically, rule 1.525 were applicable. Therefore, the motion was not timely.
 

Lesson learned:

If anyone was hoping this trap-for-the-unwary would just go away, forget about it. Now that we have a couple of appellate decisions plus an ActionLine article plus the RPPTL section all talking about how Civ. Pro. Rule 1.525 applies to "adversary" probate proceedings and trust litigation, you need to assume everyone’s heard of this issue by now and will be more than happy to spring this trap on you if you blow the 30-day deadline to file your motion for fees. You’ve been warned.

Belanger v. Salvation Army, 2009 WL 223884 (11th Cir.(Fla.) Feb 02, 2009) [Attorney Interview]

The Salvation Army has been enmeshed in litigation since 2007 over approximately $105,000 it received from a pay-on-death account [click here]. At issue was whether a corporation, such as the Salvation Army, could be the beneficiary of a pay-on-death bank account under Florida law. According to the trial court and now the 11th Circuit, the answer is "yes." The following excerpt from the 11th Circuit opinion does a good job of framing the issue and explaining the court’s statutory-construction ruling:

Richard Jason Belanger, as son and personal representative of the Estate of Richard Jose Belanger, deceased, brought this diversity action against The Salvation Army to recover funds which The Salvation Army had obtained from a pay-on-death bank account established in the name of “Richard J. Belanger, In Trust For The Salvation Army.” The Estate argues that The Salvation Army, a corporation, cannot be considered a “surviving beneficiary” under the pay-on-death account provisions of section 655.82, Florida Statutes. The district court granted a motion to dismiss in favor of The Salvation Army, finding that a corporation can be a beneficiary of a pay-on-death bank account under Florida law. The Estate appeals.

This case presents an issue of first impression: whether a corporation qualifies as a “person” permitted to be a lawful beneficiary of a pay-on-death account under section 655.82 of the Florida Statutes. We, therefore, must form a reasoned opinion as to how this statute should be interpreted. We determine that the plain language of section 655.82 permits a corporation to be a beneficiary of a pay-on-death account because the definition of the term “person” in section 1.01(3) of the Florida Statutes includes corporations. Accordingly, for the reasons set forth in greater detail below, we affirm.

Taylor v. Taylor, — So.2d —-, 2009 WL 186155 (Fla. 1st DCA Jan 28, 2009) [Attorney Interview]

I wrote here in 2006 about an "ambiguous" premarital agreement that the 3d DCA held was a valid waiver of a widow’s marital rights under F.S. § 732.702. Here’s the clause at the center of the 3d DCA case:

"It is [husband’s] intent that, in the event of his death, all of his separate property be given to his children, STEVEN M. LADD and BETHANY S. LADD, or as otherwise provided for in his Last Will and Testament."

In that case the court relied on evidence outside of the four corners of the agreement as the basis for enforcement. In other words, the 3d DCA held this clause was NOT precise enough on its own to effectuate a waiver of spousal rights under F.S. § 732.702, so the probate court was right to accept parol evidence when enforcing it.

Fast forward to the present and the linked-to opinion out of the 1st DCA. Here’s the waiver clause at the center of the new case:

"All property which belongs to each of the above parties shall be, and shall forever remain, their personal estate, including all interest, rents, and profits which may accrue from said property, and said property shall remain forever free of claim by the other."

According to the 1st DCA this clause was just fine, thank you very much. No ambiguity here. In fact the 1st DCA goes out of its way to let the probate court know that it should NOT have taken parol evidence to "decipher" its meaning. Here’s how the 1st DCA explains its ruling upholding this clause on the grounds that under F.S. § 732.702 a contract’s broadly-stated intention to waive spousal rights in whatever form they may take is sufficient:

Application of section 732.702(1) leads us to conclude that the trial court erred in determining that the prenuptial agreement was ambiguous as to Appellee’s rights in the decedent’s estate. Section 732.702(1) does not require that the parties specify an intent to relinquish rights given to surviving spouses in order to effectively relinquish those rights. Instead, the statute provides that a general relinquishment of “all rights” or equivalent language is sufficient to accomplish this purpose. Here, Appellee agreed, under paragraph one, that after marriage, the decedent’s property would “forever remain [his] personal estate” and that such property would be “forever free of any claim by [Appellee].” Because this language is equivalent to a statement that Appellee waived “all rights” in the decedent’s property or estate, section 732.702(1) compels a conclusion that the prenuptial agreement was a valid waiver of those rights.

Lesson learned?

I think it’s impossible to reconcile the different approaches taken first by the 3d DCA in 2006 and then by the 1st DCA above when applying F.S. § 732.702 to what all of us can agree are less than artfully drafted prenuptial agreements. So what’s a probate litigator to do? Cover all your bases. How? Argue in the alternative: build a record that wins your client’s case based both on parol evidence (à la the 3d DCA’s approach in 2006) and on the text of the agreement itself (à la the 1st DCA’s approach in the linked-to case above). Either way, you’re ready, willing and able to win your case.

The Winter 2009 edition of ActionLine contains a short article entitled The Cutler En Banc Opinion: Is the Third DCA Eroding the Protection Afforded to Heirs Who Are to Receive Devises of Florida Homestead? by Melbourne probate attorney Charlie Nash. Charlie’s article does a good job of dissecting the 3d DCA’s opinion in the Cutler case, which addressed the interplay between the creditor protections applicable to otherwise freely-devisable homestead property in Florida. I previously wrote about the Cutler opinion here.

Lesson learned?

Just because you’re dealing with "freely devisable" homestead property doesn’t mean you’re home free. As made clear by the Cutler decision and Charlie’s article, as well as other recent appellate decisions I’ve written about involving freely-devisable homestead property [click here, here, here], the unintended consequences can blow up even the most carefully crafted estate plan.

A "QTIP trust" allows a person’s estate to receive a 100% estate-tax marital deduction for assets left in trust for a surviving spouse for life, with the remainder of the trust assets going to the settlor’s children (or other heirs) once the surviving spouse passes away [click here].  A common source of trust litigation is the hostility often existing between children of a first marriage and the step-parent who becomes the life-time beneficiary of the QTIP trust.

One very effective long-term solution for this type of litigation is to permanently separate the warring factions by simply terminating the QTIP trust and dividing the assets between the life-time beneficiary (surviving step-mother) and the remainder beneficiaries (children of dad’s first marriage).  Sounds simple, but the tax and trust-law issues triggered by this split can be extremely complex.  There are two recently-published resources that provide a solid starting point for trusts-and-estates lawyers looking to get their arms around QTIP splits.

First, I recently wrote about creative lawyering by Florida attorneys working through a QTIP trust split/termination and related IRS Private Letter Ruling 200844010, in which the IRS outlined the operative tax issues and blessed the tax results the parties were attempting to achieve in their settlement agreement [click here].

Second, in a follow-up to his blog entry discussing the QTIP-termination PLR [click here], Florida tax attorney/blogger Charles Rubin, of Gutter Chaves Josepher Rubin Forman Fleisher P.A., recently published an article entitled Tax Results of Settling Disputes Involving QTIP Trusts.  Mr. Rubin’s article does an excellent job of expanding on the tax issues reflected in IRS Private Letter Ruling 200844010 and pointing out all the other potential traps for lawyers involved in similar cases.

Presto!  You’re now a QTIP trust termination expert.

Five Points Health Care, Ltd. v. Mallory, — So.2d —-, 2008 WL 5411834 (Fla. 1st DCA Dec 31, 2008)

Under Florida law an attorney-in-fact’s authority is limited solely to actions “specifically enumerated in the durable power of attorney.” F.S. 709.08(7)(a). Sounds simple enough. But the question courts have to grapple with is how specific does the enumerated grant of authority in the durable power of attorney (DPOA) have to be?

With respect to arbitration agreements, the 2d DCA has recently come out at both ends of the spectrum. In January of 2008 the 2d DCA ruled in In re Estate of McKibbin that a specific reference to the arbitration agreement in the DPOA was needed. Having apparently experienced a change of heart, a few months later in September of 2008 the 2d DCA basically reversed itself, ruling in Jaylene, Inc. v. Moots that a general grant of authority in the DPOA was all you need.

My guess is that most Florida appellate courts will err on the side of enforcing arbitration agreements whenever they can. So I expect they’ll enforce arbitration agreements executed under broadly-stated grants of authority in DPOA’s more often than not. And that’s exactly what happened in the linked-to opinion.

In the linked-to opinion the 1st DCA described the key provisions of the contested DPOA as follows:

The nursing home admission agreement which contained the arbitration clause was signed by Carlene Mallory under the durable power of attorney (POA) granted her by her mother. The “Durable Power of Attorney” signed by Alfreda Mallory a year before she was admitted to the nursing home stated, in part:

All acts done by my attorney-in-fact pursuant to this power shall bind me, my heirs, devisees and personal representatives; provided, however, that all such acts performed hereunder shall be for my benefit only and not for the benefit of my attorney-in-fact.

The POA listed seventeen paragraphs specifying the powers of the attorney-in-fact, one of which stated that the attorney-in-fact was authorized to: “Prosecute, defend and settle all actions or other legal proceeding touching my estate or any part of it or touching any matter in which I may be concerned in any way.” The seventeenth paragraph authorized the attorney-in-fact to: “Do anything regarding my estate, property and affairs that I could do for myself.”

Based on the foregoing, and relying in part on the 2d DCA’s McKibbin decision, the trial court ruled that because the DPOA didn’t contain a specific reference to arbitration agreements, the contested arbitration clause was unenforceable.  The 1st DCA reversed, basing its analysis on the less stringent standard applied in the 2d DCA’s Jaylene opinion:

[W]e find persuasive Jaylene, Inc. v. Moots, 2008 WL 4181140 (Fla. 2d DCA Sept. 12, 2008), in which the Second District Court of Appeal declined to follow its prior opinion in McKibbin, noting that “the opinion in McKibbin does not set forth the language of the power of attorney under review in that case” and “is not controlling here where the POA unambiguously makes a broad, general grant of authority to the attorney-in-fact.” Id. at p. 3. In Jaylene, the court reversed an order denying a motion to compel arbitration in circumstances similar to the case at issue.

.  .  .  .  .

We note that the trial court did not have the benefit of the opinion in Jaylene when it entered its order. Nevertheless, we find the reasoning in that opinion persuasive, and we find that the POA at issue is sufficiently similar to the POA at issue in that case to warrant application of that reasoning to the case at issue.

The order denying the motion to compel arbitration is REVERSED and the case is REMANDED for further proceedings.

Lesson learned?

I have no doubt that the specific context of this case and others addressing the enforceability of arbitration agreements signed by attorneys-in-fact operating under DPOA’s is significant. Which means you need to be careful when looking to these opinions in the types of cases probate lawyers usually run into as part of their practice: DPOA’s being used to change estate planning documents [click here] or change life-insurance beneficiary designation forms [click here, here] or otherwise defraud elderly clients [click here]. In those cases I expect you’ll find appellate courts will demand a much higher level of specificity in terms of the authority granted under the DPOA.