Know The Law: Durable Power of Attorney Exploitation

October 13, 2014
Published in the Union Leader

Q. I am an accountant and suspect that a man my client entrusted to serve as her Durable Power of Attorney is using his authority for his own personal benefit. My client has no living family or friends. Is there anything I can do to make sure she is not being exploited?

A. The New Hampshire Courts want to ensure that people who entrust their personal and financial affairs to others have sufficient safeguards to protect their interests. If you believe your client might be the subject of exploitation, there is a petition that can be filed that would require him, as her agent, to provide an accounting and determine whether he has acted unlawfully.
Preference for who may bring the petition is given to those having a direct relation to the principal, such as the principal herself, a spouse, child, parent, a person named in the will or someone who would receive assets under the intestacy statute, a healthcare provider, or a state agency.  However, if no one from those categories is able or willing to bring the petition, “any other interested party” who can satisfactorily demonstrate an interest in the welfare of the principal, and that the principal does not have the capacity to bring the petition herself, may also bring the petition.
The first step in bringing an action against the agent is to make a written demand for an accounting.  Under the statute, the agent has sixty days after the demand to provide the accounting. However, the timing may be shortened by court order for good cause. Matters affecting the principal’s health care warrant a reduction to just seven days.
At the end of the sixty day period if an accounting has not been provided, the accounting is deficient, or the accounting confirms or further suggests there has been mishandling or misappropriation of your client’s assets, then you may proceed to file the petition.  Should the petition be successful, you may have an opportunity to recover the costs you will have incurred in bringing the petition.
Depending on whether your client is “incapacitated” you may have an obligation to also report the conduct to the Bureau of Elderly and Adult Services (BEAS). Incapacity in these circumstances means the inability of a person to manage their personal and financial affairs due to physical, mental or emotional impairment. If you believe in good faith that your client is incapacitated and being exploited, you should alert BEAS.  
Darrell Chichester can be reached at
Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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