I am in California and have POA for an elderly friend with dementia. Can I bring an action to court for him?
He is the beneficiary of a Special Needs Trust and the trustee is unfortunately walking all over him by dragging his feet in setting up the SNT to help his medical needs, not providing an accounting and not following other trust disbursements.
I hired an attorney to help with SNT needs and I'm being told that the courts will not recognize my POA to bring actions upon the trustee to force a an accounting or distribution.
This attorney wants me to become conservator and I’m told then the courts will take action. However; this is a time consuming, costly and more detailed in responsibilities to adhere to.
The POA says I have legal authority. I don't want to go before the courts, I want the attorney I hired for the beneficiary (or someone else) to do this exparte motion to force the trustee to give the accounting which is well over a year since the trustor passed away.
This is what the attorney is saying- "Despite what your POA says, the court will not recognize your ability to litigate on behalf of another."
Is this true, can anything else be done besides conservatorship?
2 Answers from Attorneys
Without reading the POA, it is not possible to give you an opinion on whether your particular Power gives you the right to commence this type of litigation. I realize that's a really "lawyerly" answer, but the words used in the document are crucial. They may also mean slightly different things to lawyers and the courts than to laypersons.
It sounds like at a minimum, you need a second opinion.
Charles R. ("Rick") Perry
Although I agree with Mr. Perry that we can’t tell for sure without seeing the actual POA document, I suspect what the other attorney is telling you is correct. First off unless the POA was given before dementia set in, it is invalid from the start. If it was given before dementia set in, it must be a special type of POA called a “durable” POA, or it has become invalid. A normal POA only grants the power to do what the grantor could do themselves. Once the grantor becomes incapacitated, physically or mentally, the POA expires unless it has specific special language that allows it to continue after incapacity. In the absence of that special language obtaining a conservatorship is the only way to get authorization to act on the elderly person’s behalf.