[WSBAPT] HELP re: POA problem

Wed Jan 29 11:08:12 PST 2014

1.        Yes.

2.       Look at RPC 1.14...I think about representing a client with
diminished capacity.  If you feel he is incapacitated and at risk YOU can
file the Petition, but that's all.  You are then out of the picture and
need to be very careful about violating atty/client priviledge.

>From you analysis I am unsure whether your client is "incapacitated" at
all,  or at risk of financial exploitation, as opposed to just being 

very untrusting.  If later, then I would not pressure him to do a POA, but
rather just make it clear to him that the only option in the future 

would be a guardianship which would restrict his authority, input and
control a LOT More than a POA. 

Craig L

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Heather Kolbly
Sent: Wednesday, January 29, 2014 11:01 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] HELP re: POA problem

Hi All,

I have had an odd situation come up with a client and I could really use
some guidance, since I've never dealt with this before.  Client is
terminally ill with ALS and is a quadriplegic at this point.  His mind has
been clear for the past year, but he is now showing some signs of paranoia
and not trusting people.  He seems to be making things difficult for his
appointed Agents holding power of attorney, and they keep withdrawing.
Client increasingly believes that people are out to get him and take his
money/property.  Client's only relative is a sister from whom he is
estranged, so he draws upon friends to act on his behalf.   I have written
two different financial durable powers of attorney for Client in the past
year, each one naming different friends to be his financial Agent.  The
current financial Agent has been contacting me and telling me the job is
turning out to be far more time consuming than he realized it would be,
and he needs to be paid for his time.  The POA allows this and Client has
told Agent to pay himself, however, they can't seem to agree on a
reasonable wage and I am hearing all kinds of odd things from Client about
payment.  So, Agent is working a lot and not getting paid, and he has
asked to have a meeting with Client, himself, and me to go over the terms
of the POA and the reasonableness of payment.  Client does not want to
have this meeting, and Agent is ready to withdraw.  It's becoming an
impossible situation for all involved.

QUESTIONS:

1.        The current POA document names an additional 2 choices for
financial Agent, but the second in line now refuses to act based on what's
happened with the current Agent.  Third Agent in line lives in Oregon, and
I am not sure how easily he will be able to carry out the duties at this
point being so far away.  I am also concerned that Client will drive this
person away as well.  WHAT HAPPENS WHEN CLIENT RUNS OUT OF AGENTS?  The
POA states that the last serving Agent can appoint a successor, but none
of the nominated Agents know anyone else to appoint.   I am guessing this
is where guardianship proceedings come into play, right?

2.       I have spoken to Client about guardianship possibilities and
using a professional guardian, since he doesn't know anyone else willing
to act on his behalf.  He does not like the idea of losing control over
his finances to a person he does not know and feels he really just needs a
secretary to handle his bill-paying rather than a financial Agent.  I've
gone over the pros and cons of this; not sure how much is sinking in.  IF
GUARDIANSHIP PROCEEDINGS ARE APPROPRIATE/NEEDED, WHO FILES THE PETITION IF
CLIENT IS AGAINST IT AND THERE IS NO ONE ELSE TO ACT ON HIS BEHALF?  DO I
HAVE A RESPONSIBILITY OR ANY LIABILITY HERE?   I don't handle
guardianships (except as a GAL), and I don't want to have the
responsibility for making such a filing, especially if it's against my
client's wishes.  Who helps him, though if there is no one else?  He lives
in an adult care home - could the manager there bring a guardianship
petition (if they are even willing to get involved)?

Many thanks to anyone who can help me out here.  I feel like it's getting
outside of my area of expertise and I don't want to do the wrong thing.

Heather Kolbly

Kolbly Law Firm, P.C.

peace of mind through planning

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