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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. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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