Power of Attorneys and Conservators

When a person executes a power of attorney, they are naming a person to act in concert with the writer of the power of attorney and allowing that person the ability to independently act without the approval of the writer, usually for financial affairs.  This helps in situations involving the elderly, because a family member, oftentimes an adult child, can assist with the management of financial affairs.  

In the event of a conservatorship application being filed, the Court will view the power of attorney document and pursuant to law, will not remove the authority from the power of attorney unless the power of attorney is not performing the tasks appropriately.  

C.G.S. Sec. 45a-650(f)(3) provides that, “No conservator may be appointed if the respondent’s personal needs and property management are being met adequately by an agency or individual appointed pursuant to Section 1-43, 19a-575a, 19a-577, 19a-580e or 19-580g.  Section 1-43 and Section 19a-575a apply in the instant case, as my client has executed a power of attorney prior to any finding of incapacity.  

C.G.S. 45a-650(g) further provides that, “When determining whether a conservator should be appointed the court shall consider the following factors:…7. Whether the respondent had previously made adequate alternative arrangements for the care of his or her person or for the management of his or her affairs, including, but not limited to, the execution of a durable power of attorney, springing power of attorney, the appointment of a health care representative or health care agent, the execution of a living will or trust or the execution of any similar document.”

A power of attorney is effective in allowing someone to assist with your affairs, can be used to ensure that a conservator either is not appointed or a specific appointment is made, and will endure as a matter of law even if a third party files a conservatorship application.  

This comes with the obvious issue regarding the power of attorneys who abuse the trust they are given and steal funds.  Any individual naming a power of attorney should be extremely careful and should build in safeguards so that they can ensure that whatever power they delegate is being managed appropriately.  

THEFT BY A POWER OF ATTORNEY

C.G.S. 45A-175 grants the Court power to order a fiduciary to provide an accounting for what they have done as a power of attorney.  The Court can grant these motions where the application is properly filed, and usually requires some sort of showing as to the reason behind the request.  Oftentimes a request is supported by bank statements or cancelled checks, or some other sort of documentary evidence that gives rise to concern that funds may be being misappropriated.  

The most common situation I have seen with a power of attorney accounting being requested is alleged theft.  The power of attorney accounting is the first step in building a case for a claim on a probate bond and also for a criminal case against the alleged theft.  Oftentimes, there are explanations for the questions and the issue can be resolved among the parties.  However, in the other instances, the power of attorney accounting can be a valuable tool in setting a person into their story and getting them to testify under oath as to their actions.

APPOINTING A POWER OF ATTORNEY:

Appointing a power of attorney is not a complicated process, but should be completed with the assistance of counsel to understand the implications of the appointment.  A power of attorney is being delegated the authority to manage your affairs as if he or she was in your place.  For example, if I made you my power of attorney, you would be able to present the power of attorney at my bank and transact on my account as if you were me.  This does not change that I continue to have the ability to do my own banking on that account.  A power of attorney delegates authority, but does not remove the authority from the person giving a power of attorney. 

SHOULD I GIVE A RECORDED STATEMENT RELATING TO MY AUTO ACCIDENT:

You are under no obligation to give a recorded statement to the other driver’s insurance company.  Your obligations to your own insurance company will vary depending on your policy.  Generally speaking, my recommendation is to always avoid a recorded statement without the advice of counsel.  It is used to lock in your statement and can be detrimental to you in the future.  The fact that it is recorded gives it no value as it relates to you – it really is only going to be a bad thing or non-factor for you in the future.  At worst, it can be used as evidence of lack of concern regarding an injury, or lack of complaints regarding a specific symptom.  Remember, the goal of an insurance company is not to fairly compensate you – it is to pay as little as possible for your case.  With that being said, they will use anything they can to accomplish this goal.  

WHAT IS A PERSONAL INJURY CASE WORTH?

This is a question that I am asked by my clients on a regular basis.  How do you decide what is fair compensation?  The answer to this question is probably the toughest in personal injury, and that is because there isn’t an easy answer or formula.  The amount of your recovery will take a number of factors into consideration, including your injuries, recovery time, impairment ratings, impact on daily life, impact on work and earning capacity, lost wages, age, leisure activities, prior injuries and any amounts that are owed, along with any liens from health insurance carriers.  All of these factors are considered in giving you a damage assessment of what your case is “worth.”  

WHAT SHOULD I HAVE FOR INSURANCE COVERAGE?

Oftentimes, by the time my clients come to me to ask this question it is too late and an accident has already occurred.  If I had the opportunity to turn back the clock and talk to my clients sooner, I would recommend that every person have a minimum of $50,000.00/$100,000.00 in both bodily injury and underinsured /uninsured motorist coverage.  $20,000.00 / $40,000.00 is the state minimum, but it is my feeling that this just isn’t enough to cover anyone if there is an injury.  The problem is that a typical emergency room bill can range from 3-7K for a pretty standard evaluation of a soft tissue injury.  An ambulance bill ranges from 700-1300, if not more.  By the time you leave the hospital, you can be approaching $10,000.00 in medical bills!  That is before you seek any additional follow up, or receive compensation for any other injuries.  

Because of this, a $20,000.00 policy really doesn’t compensate an injured party.  The problem is – there are so many people out there with $20,000.00 policies!  So – in order to make sure that you will be compensated, it then becomes important for you to have your own protection under your own policy – which is called underinsured / uninsured motorist coverage.  This coverage helps to compensate you when the other driver doesn’t have enough coverage.  It can also cover family members and members of your household.  It can provide coverage for you even if you are a passenger in another person’s car.  I have even seen policies which provide for coverage for a pedestrian, who is struck by a car, who is a member of a household of another person who has underinsured / uninsured motorist coverage!  

The bottom line on insurance is this – to protect yourself from liability and also to ensure that you can be compensated, $50,000.00 should be the bare minimum for both bodily injury and underinsured / uninsured coverage. 

The reality is that the increase in coverage will cost you a few bucks more on your premium.  However, if you are a person without health insurance (or with state coverage), it is a cheap way to ensure that you are protected from the most common catastrophic event that most adults face in their lifetime.