Thursday, March 3, 2011

The Handyman's Daughter

One of the most disturbing trends I have seen is reflected in disciplinary charges recently brought by the Illinois Administrator. The complaint  (which involves as yet unproven allegations) tells a story that, if proven, reflects shame on the legal profession.

The allegations involve a woman who granted power of attorney to a friend in 2000. At the time, she was 86 and has no natural heirs or descendants. The power of attorney was in force until January 2008, when the woman was 94 and suffering from dementia.

The friend had discussed the situation with a handyman in her building. As a result, the handyman's daughter (a 25 year old waitress at Cafe Europai Chicago) became one of the woman's two live-in caregivers.

The attorney prepared a power of attorney for the handyman's daughter without taking any steps to determine the woman's competency. The complaint alleges power of attorney was used to take over $400,000 of the woman's estate.

The attorney also is alleged to have drafted a will for the woman which made the handyman's daughter her sole heir:

On or about September 7, 2008, P. [the woman] contacted Respondent and requested his assistance in connection with the preparation of a will.

At the time he agreed to prepare a will for P., Respondent took no steps to determine the state of [her] health. Further, at the time he agreed to prepare the will, Respondent did not make a reasonable inquiry into P.'s capacity to understand or execute a will. Had he done so, he would have discovered that P. was suffering from dementia, and that she was incapable of making personal and financial decisions on her own behalf.

Between September 7, 2008, and September 15, 2008, Respondent prepared a will for P. pursuant to her request. The will named [the handyman's daughter] as P.'s sole heir.

On September 15, 2008, [the handyman's daughter] and P. came to Respondent's office, and Respondent met with P. outside [daughter's] presence to discuss the will. During that conversation, Respondent did not ask P. any questions regarding the nature or extent of her assets, or how she held title to them.

At no time prior to, on, or after September 15, 2008 did Respondent take any other steps to obtain any information regarding the assets in P.'s estate.

At no time prior to, on, or after September 15, 2008 did Respondent make a reasonable inquiry into Polachanin's capacity to understand or execute the will. Had he done so, he would have discovered that P. was suffering from dementia, and that she was incapable of making personal and financial decisions on her own behalf.

The ABA Journal has a post today on the problem of elder abuse.

If the charges are proven, I would expect severe discipline to follow. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/03/elder-abuse-charges.html

Bar Discipline & Process | Permalink

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Comments

Why severe? The excerpt, at least to the extent quoted, does not make out a motive of greed or a state of mind of knowing. I only see incompetence here. Now, maybe the incompetence is so gross that intent could be imputed but I just don’t see it from what is quoted here.

Stephen

Posted by: FixedWing | Mar 3, 2011 1:06:33 PM

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