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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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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