How Far Can an Attorney-in-Fact Act On My Behalf?

July 1, 2013 by Scott C. Soady

A general durable power of attorney is an important estate planning document that grants your agent—the attorney-in-fact—the authority to act on your behalf in any contractual matter. Unless limited by your power of attorney or California law, your attorney-in-fact is you for all legal intents and purposes. Sometimes, however, even courts fail to properly understand the role of the attorney-in-fact.

A California appeals court panel in Los Angeles recently reminded a lower court of this role in a case that involved not just a power of attorney, but also the proper interpretation of a trust used for estate planning purposes. The case is discussed here for informational purposes only and should not be treated as a binding statement of California law.

Trustees Dispute the Attorney-in-Fact's Authority

Jack Heger died in 2008. Heger previously transferred his property into a living trust with his sons, Joel and Christian Heger, as successor trustees. Heger's widow, Marion Heger, was not the children's mother. Marion Heger had her own son from a prior marriage, Earl A. Clampett, Jr. In 2006 Marion Heger, who suffers from Alzheimer's, signed a general durable power of attorney naming Clampett as her attorney-in-fact.

Under the terms of Jack Heger's trust, each year Marion Heger could request either $5,000 or 5% of the value of the trust, whichever was greater, and Joel and Christian Heger were obliged to pay over that amount. In December 2010, George Andreos, Earl Clampett's attorney, sent a letter to the Hegers requesting Mario Heger's distribution for that year. The Hegers' attorney rejected that request, alleging Andreos did not have the authority to act on behalf of Marion Heger, and even if he did, his request did not conform with the trust's requirements.

Clampett ultimately filed a petition in probate court to compel the Hegers to make the distribution. The Hegers objected. The probate judge sided with the Hegers, finding that Andreos lacked standing to make the initial request. The judge said only Marion Heger or Clampett, as her named attorney-in-fact, could make such a request.

Conforming to the Trust's Requirements

The court of appeals disagreed with the probate court. Presiding Justice Dennis M. Perluss, writing for a three-judge panel, said that Clampett was legally entitled to request Marion Heger's trust distribution on her behalf. It made no difference that Clampett made the request through his own attorney. After all, Justice Perluss noted, Marion Heger could have made the same request through her own attorney. Jack Heger's trust only required that Marion Heger request her distribution in writing by a certain date. Whether the letter was signed by Heger, her attorney-in-fact, or his attorney made no difference.

There are some cases where an attorney-in-fact cannot act for a person without express consent. This was not one of those cases. But if you're thinking about signing a general durable power of attorney for yourself, it's important you consult with an experienced San Diego estate planning attorney who can advise you on all relevant legal requirements. If you have any questions, please contact the Law Office of Scott C. Soady in San Diego at 1-877-435-7411.