Most of the time, a power of attorney is a very useful tool, implemented for convenience, which gives the ability of a family member or other trusted person to carry on business without interruption or significant delay. But sometimes, it can do more harm than good.

A Useful Tool

In Arkansas, the Legislature recently changed the Power of Attorney Act, which will govern all Powers of Attorney created in Arkansas before, on and after January 1, 2012.

For this useful tool to be completely effective and legal, it must meet the specific requirements of the Act. If you want to make sure the Power of Attorney you have given or received meets the Act’s requirements, you should have it reviewed by a competent attorney.

Changes In Arkansas Power of Attorney Laws

Under the new Arkansas Act, the following principles will soon apply. By default, the power of attorney is durable. By default, the power of attorney is effective when signed, although the principal can cause the power of attorney to become effective upon the principal being incapacitated. The signature of the principal is presumed to be genuine if acknowledged by a notary.

If no one is authorized to determine incapacity, then it can be made by a physician,  a licensed psychologist, an attorney, or a judge. Anyone authorized by the principal may act pursuant to the Health Care Portability and Accountability Act (HIPAA).

When a power of attorney is presented, the person receiving the power of attorney can take the following actions: accept the power of attorney, request a certification, or request an opinion of counsel. The request must be no later than seven business days after presentation of the Power of Attorney. The power of attorney must be accepted no later than five days after the receipt of the certification or opinion.

A person may not require an additional or different form of power of attorney for authority granted in the statutory form power of attorney presented. A person is not required to accept an acknowledged statutory form power of attorney if:

• the person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;
• a request for a certification, a translation, or an opinion of counsel under § 28-68-119(d) is refused;
• the person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification or an opinion of counsel under § 28-68-119(d) has been requested or provided; or
• the person makes, or has actual knowledge that another person has made a report to the Department of Human Services stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.

A person that refuses to accept an acknowledged statutory form power of attorney is subject to a court order mandating acceptance of the power of attorney and liability for reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

Certain actions by the agent under a power of attorney are required to be stated in the document

• Amend, revoke, or terminate a trust created by the principal.
• Make gifts.
• Create or change rights of survivorship.
• Create or change a beneficiary of designation.
• Delegate authority under the power of attorney to another.
• Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.

A Dangerous Weapon

It is apparent from the language of the new Act that our Legislature was seeking to strike a balance between the convenience and usefulness of the Power of Attorney, and the very real potential for abuse.

Unfortunately, many people have been victimized by granting a power of attorney to someone they trust, only to find out (often when it is too late) that the person who was given the power of attorney has abused their “power.”

The abuse of a power of attorney by making transactions benefitting the agent (known as “self-dealing” transactions) and other acts not in the best interest of the principal can cause significant damages and economic losses.

The problem stems from the fact that the level of trust sometimes blinds the person who has granted the power of authority in the other person. They feel uncomfortable asking to see the documents or asking questions.

This is entirely understandable, but it should never be the case. The principal should be encouraged to always ask to see documents, and to ask questions.

If you suspect that a loved one may be subject to being taken advantage of, ask the questions on their behalf. Often, suspicions need to be investigated. If there is nothing to hide, then the person with the power of attorney should have no problem at all showing documents or answering questions.

If you suspect that you, or a person you care about may have been a victim of an abuse of a Power of Attorney, and are not quite sure how to handle it, then call us.  We have successfully represented clients in cases involving the abuse of a power of attorney and breach of fiduciary duty. We are confident we can help.

False sexual abuse allegations have become more common in divorce and custody cases. The majority of time the allegations turn out to be false for any number of reasons: 1) coaching by a parent; 2) confusion by the child as to actual events; 3) outright lying by the parent; 4) outright lying by the child (usually at the direction of the parent); and many other reasons.

Understandably, these false allegations can be permanently damaging to the allegedly guilty parent, their reputation, and their career. Not to mention their relationship with their children. Worse, the investigation system in such cases is more of a “guilty until proven innocent” method as opposed to the other way around.

The only way to fight false allegations is to relentlessly pursue the truth.

Our firm is committed to helping those that have been falsely accused of this most heinous of accusations. If you have been falsely accused of sexual or physical abuse, give us a call. We can help.

Here’s the link…
Zobrist v. Zorbrist

Here’s the link…
Valentine v. Valentine

“…we are of the opinion that in order to properly determine the
income of a self-employed child-support payor, a trial court must first consider the past two
years of tax returns, and quarterly estimates for the current year, allowing depreciation as a
deduction if it reflects the actual decrease in value of an asset. Then, if the trial court believes
that the tax returns are unreliable, the trial court must make specific findings to support that
determination. After doing so, the trial court can then proceed to determine a child-support
payor’s income by using a net worth method.”

Here’s the link…
Wright v. Wright

Note: I’m a little concerned about the word “unreliable” in this opinion. Almost sounds like you have to show that the tax return was somehow prepared improperly. I think what the court is intending to say is that if the court does not believe the tax returns are providing a true indication of the payor’s income then the court can look to other evidence.

Note: An interesting fact in earlier proceedings between these parties early in this opinion. Note that the trial judge in 2004 found the mother in contempt for failing to comply with court ordered visitation. The punishment? Community service! First time I’ve seen that one in a domestic case. Maybe not a bad idea.

Here’s the link…
Harris v. Harris

A very good discussion of how trial courts review a relocation request and the factors involved under the seminal case (Hollandsworth):
Mathews v. Schumacher

Here’s the link…
Hollingsworth v. Hollingsworth