As a part of most elder law plans, an attorney will recommend that a client execute powers of attorney. These documents give another, the agent, powers to do certain acts on behalf of the person signing the document, the principal. In a Healthcare Power of Attorney, these powers would relate to being able to make healthcare decisions, access medical records, and talk to doctors. The powers held by the agent under a Financial Power of Attorney can be very broad, including property powers, financial powers, business powers, and legal action powers. This Financial Power of Attorney will be what we focus on here.

The agent, when acting under the power of attorney, is acting in a fiduciary capacity. What does this mean? The agent is basically stepping into the shoes of the principal and so must act in the best interest of the principal. Being an agent and having the powers outlined in the power of attorney is not authorization for the agent to do whatever he or she wants with the principal’s finances. But what happens when the agent is a spouse? Are the lines blurred? Can a spouse-agent transfer property to herself and not run afoul of her fiduciary obligations?

This topic was recently litigated in North Dakota. In Estate of Lindvig, the Supreme Court of North Dakota ruled that the spouse-agent could make such transfers. Let’s take a closer look at this case.

Reading that another attorney has been disbarred is never good news; we don’t delight in the misery of others. But we can learn lessons from their mistakes. Let’s take a deeper dive into The North Carolina State Bar v. Erickson to see how we can more understand how to better serve clients.

Ms. Erickson was admitted to the North Carolina State Bar in 2015. She began her career at a law firm, but was discharged in 2018 after certain grievances were filed against her with the State Bar. Those grievances are as follows:

Complaint 1:

Ms. Erickson represented Client 1 in a proceeding to sell the home of Client 1’s deceased husband. Ms. Erickson attempted to notify Client 1’s children and obtain their consent to the sale of the home. In a meeting with Ms. Erickson, Client 1 presented a man that Client 1 claimed to be her son. The man signed the required document and Ms. Erickson notarized it. The man was, in fact, not Client 1’s son. Ms. Erickson did not check the man’s identification upon notarization.

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