Ask Rob – Power of Attorney Challenges

Who Has Standing to Challenge the Actions of an Agent Under a Power of Attorney?

Power of AttorneyThis question is often asked to me when someone is concerned about abuse of an older adult who no longer has the ability to advocate for him or herself. The answer depends largely on whether or not the grantor of the power of attorney is still alive.  In either case, a court order is required.

Recent changes were made to Pennsylvania’s power of attorney statute by Act 95 which was enacted in 2014 and amended Title 20, Chapter 56 of the PEF Code. All of the Act’s provisions have been effective since January 1, 2015.

PEF Code Section 5601.3(d)(1) provides that an agent shall not be required to disclose receipts, disbursements or transactions conducted on behalf of the principal unless ordered by the court, during the principal’s lifetime requested by the principal, the principal’s guardian, another fiduciary for the principal or a governmental agency, and after the death of the principal by the personal representative or a successor in interest to the principal’s estate.

The statute does not require an agent to disclose receipts, disbursements or transactions to an heir of the principal or a beneficiary under the principal’s will.

You can petition the Court to have a guardian appointed for the principal. The guardian clearly has standing to seek an accounting. But if the petition is not granted, the principal or agent under the POA may retaliate in a number of different ways. And if the older adult is angry about the petition, he or she is able (because with no guardian appointed, there is a presumption of testamentary capacity) to disinherit the petitioner.

The Need for More Accountability for the Power of Attorney Agent

We need more tools and more ways to hold agents accountable. The PA Supreme Court’s Elder Law Task Force suggested additional people be given legal standing to challenge the actions of someone given power of attorney. The task force noted that nearly half the states provide legal standing to others interested in the welfare of someone who has a power of attorney handling their affairs. It makes sense that allowing more people to force an agent under a POA to account for his or her actions is likely to force more people to observe a higher level of prudence when managing another’s funds. It is also likely to reduce the number of unscrupulous people who seek out this position.