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Is Your Power of Attorney Adequately Specific?

In 1989, James A. Smith executed a durable power of attorney in which he appointed his longtime friends and business associates, David J. Adams and Alfred H. Carl, as his attorneys-in-fact. In the durable power of attorney, he also nominated them as his guardians in the event of his future incapacity.

In October 1996, after Mr. Smith had developed dementia, Mr. Smith’s wife and daughter filed a petition for guardianship, requesting that Mrs. Smith and James F. Linnehan, a family friend, be appointed as Mr. Smith’s guardians. A hearing was held, and the only evidence presented by Mrs. Smith and Mr. Linnehan was that there was friction between David Adams and the Smith family. The court agreed with Mrs. Smith and Mr. Linnehan and appointed them as the guardians of Mr. Smith.

In an appeal to the Massachusetts Court of Appeals, the court held that except for good cause or disqualification, the probate court must appoint the person nominated by the principal as guardian. In this case, the court could find no substantiated evidence that would disqualify Mr. Adams and Mr. Carl to be guardians for Mr. Smith. The court placed the burden on Mrs. Smith and Mr. Linnehan to show that Mr. Adams and Mr. Carl were unable to adequately perform as the guardians for Mr. Smith.

This case drives home a point that we try to make to our clients and at all of our seminars. Your power of attorney needs to include that person(s) whom you would like to be your guardian or conservator in the event that someone tries to upset your power of attorney by filing a guardianship proceeding.

This tactic that occurred in Massachusetts of trying to do an “end run” around Mr. Smith’s very clear instructions is not a new phenomenon.

Review your power of attorney. Does it contain a nomination of a guardian and conservator?

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