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Justices rule against POA on joint-account funds issue

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The Indiana Supreme Court ruled against a woman who was made power of attorney by the man she worked for as a caretaker and opened bank accounts in both their names. The presumption is that the woman’s use of her power of attorney to benefit herself made those accounts invalid, and she failed to overcome that presumption to allow her to inherit the money from those accounts.

Harry Rickert hired Keta Taylor to take care of his ailing wife. After his wife died, Taylor continued to care for Rickert until he died in 2006. Rickert had no children and he divided his estate equally among nieces and nephews, Taylor, and Carole Baker. Baker was named personal representative of the estate.

In 1997, he made Taylor a general power of attorney. She used this POA to open13 joint accounts for her and Rickert without his involvement. The trial court ordered the funds in all accounts and CDs be released to their presumptive owners. The estate appealed and a split Indiana Court of Appeals reversed.

In the case Matter of the Estate of Harry L. Rickert, No. 18S04-1002-CV-118, the justices determined that the Non-Probate Transfer Act does not override the common law and statutory presumptions of invalidity of transactions in which a holder of a power attorney uses that power to benefit the holder. The NPTA creates a presumption that joint ownership of a bank account is intended to transfer the account to any survivors at the death of an owner.

A person holding a power of attorney is in a fiduciary relationship to the person granting the power and this case is a classic example of self-dealing by a fiduciary, wrote Justice Theodore Boehm.

“On the face of the transactions Taylor used her position as attorney-in-fact for Rickert to transfer an interest in Rickert’s assets to herself. At common law, such a transaction was presumed to be invalid,” he wrote, adding Indiana Code Section 30-5-9-2(b) eliminates the presumption of invalidity of a transaction between the principal and attorney-in-fact only if it’s made by the principal.

If undue influence is presumed, it’s up to Taylor to prove by clear and convincing proof that her use of her power of attorney was “voluntary and fair,” which she failed to do.

The justices also rejected Taylor’s argument that since the estate filed her deposition with the trial court, but didn’t cite it in summary judgment proceedings or offer it into evidence at trial, she should be allowed to testify in spite of the Dead Man’s Statute.

“In order to waive objection to the competence of a witness under the Dead Man’s Statute by taking advantage of a deposition of a person who is adverse to a decedent’s estate, the estate must use the deposition by offering it into evidence at trial or pretrial hearing, or citing it to the court as, for example, by designating it in support of or opposition to a summary judgment motion,” wrote Justice Boehm.

They remanded with directions to order restoration to the estate of bank accounts owned of record by Rickert and Taylor that were created through her use of the power of attorney and lack any supporting documentation indicating participation by Rickert.
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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