Litigation Resources

Representative Experience

The following are examples of our firm’s recent litigation experience:

  • Representing departed executives in defense of claims by former employer, including breach of fiduciary duty, misappropriation of trade secrets, and unfair and deceptive trade practices;
  • Representing technology company in federal court dispute involving services provided on developmental project;
  • Representing commercial landlord in action to collect unpaid rent and additional damages from defaulting tenant;
  • Representing subcontractor in action to collect unpaid fees in connection with work on construction project;
  • Representing corporate policyholder in dispute with insurance carrier regarding recovery of covered costs incurred at multiple sites; and
  • Representing family members in dispute regarding challenges to purported holographic will.
What Do We Do? A Note from our Litigation Attorney
The Power of General Powers of Attorney

Talk to any estate planning attorney – or virtually any attorney, for that matter – and he or she will tell you there is a great deal of wisdom in preparing a General Power of Attorney (POA). I am included in that list of attorneys. The documents are so common and of such importance that even our legislature has drafted a statutory short form POA (General Statutes, Chapter 32A, Section 32A-1). It is unusual that our legislature steps into these matters, but they saw fit to do so in this instance. That’s saying something.

There are so many situations in which POAs are useful. The situation that comes most frequently to mind is as a planning tool for the aging members of our population (and I am admittedly getting to the point that I am included in that list as well). POAs, in this case I mean durable POAs, can bridge the gap between a person’s ability to manage his or her own affairs and the need for assistance in doing so because of what we affectionately refer to as “senior moments” or what sadly occurs in the lives of a substantial minority of our population: debilitating dementia. Durable POAs bridge that gap because they “survive” the person’s incompetency. Having such a document can save the person both the potentially substantial expense and the unease of and necessity for an incompetency proceeding.

If you are one of the many who decide that a General Durable Power of Attorney fits your life planning objectives, please bear in mind four things: (1) you cannot wait until you have reached the point of incompetency to execute one; (2) they are incredibly powerful documents; (3) you really need to be able to trust the person or persons you name as your agent or agents; and (4) POAs are great planning documents, so you should sit down with the person(s) in whom you vested this incredible power over your affairs and discuss with him/her/them your wishes.

I litigate. I don’t prepare these documents. I only get involved if a POA has been abused … or is believed to have been abused. The issues I see fall in two general categories: (1) inadvertent disinheritance and (2) asset conversion (what I call “theft by power of attorney”). The two categories have a common fact pattern. The difference is the intent of the agent (attorney-in-fact). In the case of inadvertent disinheritance, the person is acting in good faith but is doing so in an unintentionally overreaching manner. In the latter case, the agent is taking “his” or “her” inheritance early … potentially harming the principal (the person the agent is supposed to be serving) by depleting much-needed assets and/or likely disinheriting other family members against the wishes of the principal.

How so, you ask? Agents using an unmodified short form POA (and most other Durable General POAs I have seen in my practice) have the unilateral authority to, for example, (1) change bank accounts from solely owned by the principal to jointly owned by the principal and the agent … with rights of survivorship, (2) add themselves to a principal’s banks accounts as payable on death or transfer on death beneficiaries, (3) change the beneficiary designations on life insurance policies, brokerage accounts, retirement accounts, (4) make cash withdrawals or transfers from the principal’s bank accounts. These are some of the more common examples. The effect of any of these changes in designations is to remove the assets from the principal’s estate upon the principal’s death. In other words, an agent can “rewrite” a principal’s Last Will without actually rewriting the Will (something an agent actually, ironically, lacks the power to do with a POA).

Whether the actions of the agent are innocent or intentional, undoing what was done can be quite involved. If you suspect you or a loved one is a victim of such overreaching or abuse, please contact an attorney who practices in the area of fiduciary litigation to better determine your or your loved one’s rights and potential paths to remediation. If you are in the estate planning process, address these issues with your attorney. In either case, Walker Lambe has eminently qualified attorneys to assist you in these matters.

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