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What are the Risks of a Power of Attorney?

Posted on July 5, 2022 at 4:25 PM Comments comments (2014)

What Is a Power of Attorney? What Are the Risks of a Power of Attorney?


 

A power of attorney (POA) can be a useful tool in many situations, but you need to know the

dangers of having a POA or being named as the agent in someone else’s POA. The person who

creates and signs a power of attorney is the grantor or maker of the POA. The individual the

grantor names to act on behalf of the grantor is the agent.

You will want to talk to a Missouri estate planning attorney if you are thinking about signing a

POA or if someone asked you to serve as their agent in their POA. I will be happy to answer

your questions and draft your POA or provide legal guidance if you are the agent in someone

else’s document.


A Quick Overview of a Power of Attorney

A power of attorney is a legal document that gives authority for one person (the agent) to act

as directed for another person (the grantor). Only the grantor can create the POA. Someone

else cannot create a POA that gives them the legal power to take your control away from you.

Making a power of attorney is always a voluntary decision, and you can revoke a POA at any

time as long as you still have legal capacity. If you have the mental and legal capacity to create a

POA, you have the right to revoke the paper as well. The level of capacity required to make and

sign a POA is the same as for entering into a contract or signing a will.

With the POA, your bank and other financial institutions will allow your agent to do the things

that you specify in the POA, the same as if you were there in person to make those

transactions.


Short-Term POAs

One of the most common uses for a short-term POA is to empower someone else to attend and

sign documents for you if you will not be available to attend a real estate closing. The POA will

contain specific terms that limit what your agent (not your real estate agent, but the person

you name in the POA) is allowed to do.

The POA will expire soon after the closing. The person who serves as your agent signs the

closing documents in your name, with the deed, title, and other papers being for your benefit,

not the benefit of the agent. The agent is not allowed to take any actions other than those

specified in the POA.

With a POA, you will not have to cancel your vacation or reschedule the closing. You can truly

have your cake and eat it, too. You can go ahead with your travel plans and buy the house of

your dreams.

 

Long-Term POAs

There are two main categories of long-term POAs – medical and financial. A medical power of

attorney lets you decide who will make decisions for you or follow your instructions if you

become incapacitated. A financial POA, also called a general power of attorney, empowers

someone to handle your financial matters if you become unable to do so or if you would rather

not be bothered with money management.

These POAs need to be “durable,” which means that they are still valid if you become

incapacitated. You could have a POA that is not durable, but you should talk with a lawyer

about whether that document will meet your needs.


The Danger of Having a POA

One of the greatest risks of giving another person the legal authority to handle your money or

other assets is that they might use the POA to steal from you. Trust is one of the most crucial

factors in entering into a POA.


The Risk of Serving as Someone’s Agent Under a POA

Sometimes, an agent can be personally liable for actions taken under a POA. You do not want to

get accused of mishandling someone else’s money. Honest mistakes are seldom grounds for

personal liability, but gross negligence that causes financial harm to others could lead to a

lawsuit.

A Missouri estate planning attorney at the Faulstich Law Firm can answer your questions about

powers of attorney and draft the document for you or review a POA someone has asked you to

sign. Also, we can provide guidance on how to fulfill your duties as an agent under someone

else’s power of attorney.

Can I Get a Divorce if My Spouse Is in the Military

Posted on May 25, 2022 at 12:20 AM Comments comments (332)

Can I Get a Divorce if My Spouse Is in the Military?

 

 

Yes, you can get a divorce if you or your spouse serve in the United States military. Some of the issues like jurisdiction, child custody, and visitation might get impacted by the fact that one or both of you are members of the armed forces, but a family law attorney can guide you through those issues.

 

What Is a Military Divorce?

 

Although people often call it a “military divorce” when one or both spouses are service members, state law will apply to the case. The lawsuit will get filed in a regular civil court, not in a military court.

 

Some special rules might apply, such as where the lawsuit can get filed. The military spouse might be able to delay the divorce proceeding but cannot prevent the dissolution of marriage from happening eventually.

 

If the other spouse makes certain allegations against the military spouse, the military might take punitive action against the service member. Things like domestic violence, adultery, and child abuse can be violations of military law.

 

What Is the Servicemembers Civil Relief Act and How Can It Impact a Divorce Case?

 

Congress created the Servicemembers Civil Relief Act (SCRA) to shield active-duty military personnel from getting distracted by negative things happening at home. A member of the military might not be able to devote full attention to combat or other mission duties while getting sued for divorce, foreclosure, or other events.

 

The SCRA gives service members the option to delay court proceedings until they can make arrangements to come home and appear in court. The SCRA does not automatically postpone lawsuits. The military spouse has to file papers with the court asking for relief under the Act.

 

The military spouse does not have to delay the divorce case. In fact, the military spouse can initiate the dissolution proceeding. Often, as in a non-contested divorce, the parties sign agreements and resolve their differences amicably.

 

Where Can a Military Divorce Get Filed?

 

The divorcing spouses can reach an agreement on the issue of jurisdiction and ask a court to accept jurisdiction. The parties will need to show sufficient connections with that state for the court to agree to handle the divorce.

 

When the parties cannot agree, the military spouse will have more control over the location of filing than the non-military spouse. The divorce will have to get filed in the state where the military spouse currently lives or is a resident.

 

A person can be a resident of a different state than where he currently lives. For example, a college student might go to school out-of-state while maintaining his home state as his residence. For a military spouse, the court will look to factors like the state where the service member votes, pays income taxes and has a driver’s license.

 

How Do Divorce Courts Calculate Spousal and Child Support in a Military Divorce?

 

Military paychecks are different from typical civilian paychecks because many members of the armed forces get allowances for housing, health insurance, work-related daycare, and other items in addition to their base pay. Your divorce attorney will need additional information to calculate support obligation.

 

State law will control the amount of child and spousal support the obligated party must pay. The military must honor and enforce the terms of the state court’s divorce decree.

 

Child Custody and Visitation in a Military Divorce

 

Getting deployed to a different location is part of the military experience for many service members, but that can turn child custody and visitation arrangements upside-down. One option is to try to address the issue proactively by writing terms into the original divorce decree about future relocations.

 

A family law attorney at the Faulstich Law firm can help you navigate the process if you are contemplating or going through a military divorce.

 

Is creating a Beneficiary Deed the Best Money you'll ever spend?

Posted on March 13, 2020 at 12:02 PM Comments comments (698)
Most people do not know what a beneficiary deed is.  Do you?

A beneficiary deed is a very efficient and cost effective way to transfer the title to your house to a loved one at the time of your death without your loved one having to go through the time and expense of Probate Court.  Going through Probate could take 10-50 hours or more and Thousands of Dollars($$$).  

A beneficiary deed is also a document that you create that gets recorded with the Recorder of Deeds before you pass away and it ensures that title to your real estate passes to whomever you designate in the deed.  

The best thing about a beneficiary deed is that you retain absolute rights to your real estate until the moment of your death.  That way, if you decide to change who you want as a beneficiary, you do not have to ask permission from them or anyone else to change it.

You can create a beneficiary deed or you can call me to create one for you.  I charge $150 plus whatever the recording fee is at the Recorder of Deeds Office.  If you think you have the knowledge to DYI, please do.  If you would prefer that I share my knowledge with you, please give me a call and schedule an appointment to discuss creating a beneficiary deed and/or other Estate Planning needs.  My phone # is 314-260-7823.

Why do I need a Will?

Posted on February 27, 2020 at 11:04 AM Comments comments (429)
In this day and age where just about everything can be found online, why do I need an attorney to create a Will for me?  The honest answer is that you don't!  However, the next best answer is that having an attorney will help you make sure that what you mean to leave to your family and friends actually gets left to the people that you intend to leave it to.  

It is true that you could actually just write out in your own handwriting or type up on a computer your wishes, however, do you know what needs to be in your Will to make it efficient and go through Probate without problems?  The answer is probably, No.

You can also go online and find a form for a Will, however, do you know if this Form is just for the State of Missouri or if it is a compilation of formats for a Will based on the laws in various states?

Do you know what a Will really is?  A Will really is a set of instructions to the Court as to how you want your assets and debts taken care of when you are no longer around to take care of them.

You say, well I don't need the cost of an attorney to create a Will and/or I don't need a Will at all because  I have a trust or all of my property is left to a designated beneficiary.  That may be so, but do you know how many times people set up their estate just like this and forget to include something in their Trust or forget to leave funds to take care of their last debts for their cremation or burial?  A lot is the answer and the unintended consequences of that is  that it costs their loved ones and friends in the end.

If you are interested in discussing any of this further to find out what you may not know or what else you may need, such as a beneficiary deed, Durable Power of Attorney or Health Care Directive.  Please give me a call at 314-260-7823.  I will be happy to give you a 10 minute complimentary phone call to discuss these issues so that you can determine if you need something more.

Why Limited Scope Representation Could Work for You in a Custody Case

Posted on February 19, 2020 at 4:50 PM Comments comments (421)
So you are looking to file a child custody or child support case but you do not want to hire an attorney to handle every aspect of the case because that would be cost prohibitive.  For the most part you want to be hands on and handle the case yourself.  However, there may be some small aspects of the case that require legal expertise.  For those issues you can us "Limited Scope Representation" as an affordable option that will allow you to get what legal expertise you may need without breaking the bank.  If you decide to go this route you will need to set out the parameters of representation in a limited legal services contract.  The best way to do that is to set an appointment to discuss what it is that you want and need and then sign a written document evidencing exactly what it is that will be expected from the attorney.  Our office can help you with those details and enter our limited appearance in your case, if that is what is outlined in the agreement.  If an Entry of Limited Appearance is filed in your case and once the work outlined in the limited scope representation agreement is completed a Termination of Limited Appearance will be filed with the Court and the attorney's work in the case will end.  However, an attorney is not required to file an Entry of Limited Appearance in every case.  Work can be completed without an attorney ever entering their appearance in your case.  If you are interested in this type of representation, please give my office a call to set an appointment.  Let my assistant know that your office visit is to discuss possible "Limited Scope Representation." The phone number for The Faulstich Law Firm is 314-260-7823.

What is the best way to advertise in the digital age?

Posted on February 3, 2020 at 10:54 AM Comments comments (469)
We are in a digital age where everything is instantaneous, right?  The best way to advertise is generally by making contact with people on their phones because our phones are always in our hands, right?  The next best way is probably through television.  However, the cost of this type of advertising is generally cost prohibitive for a small business.  So, the next best way to advertise is through word of mouth from prior clients.  Build your practice in such a way that client's will want you to succeed and will remember your name.  Have those client's write reviews so that you can be found on google and on other sites. That is the best way to succeed as a small business.

Psychological Evaluations and Child Custody Evaluations in Divorce and Paternity Cases

Posted on June 24, 2016 at 3:52 PM Comments comments (265)
In Divorce cases where children are involved it's sometimes appropriate to ask for a Psychological Evaluation or a Child Custody Evaluation. Generally these are not done in cases where children are not involved. The reason for this is that generally there is a concern that a parent may not have the psychological aptitude to nurture a child in a way that is appropriate for the child. A generally conscientious parent without any mental health history usually doesn't have to worry about this kind of testing. If mental health has been an issue in the past though, the request for these tests becomes more commonplace. A diagnosable mental health issue does not preclude a parent necessarily from caring for a child however. Many parents who suffer from depression or even bipolar or other mental illnesses can be fully capable, affectionate parents and their custody rights absolutely do not need to be curtailed in order to serve the best interests of the child.
You will hear this phrase many times ("the best interest of the child") because it is the standard by which the judge ultimately rules on parenting issues. This is also the standard under which a Guardian Ad Litem (an attorney appointed to represent the best interests of the children) will make their recommendation, which holds a great deal of weight with the court. In most of the cases you see where Psychological Evaluations or Child Custody Evaluations are asked for, you will have a Guardian Ad Litem. The issues and concerns that attend the appointment of a Guardian Ad Litem and Psychological Evaluations or Child Custody Evaluations have a great deal of overlap.
Now, one thing to realize is that a Psychological Evaluation and a Child Custody Evaluation are not the same. The children are not involved in a Psychological Evaluation. The Psychological Evaluation is for the adults, the parents. Generally, regardless of which parent is the parent of concern in regards to mental health, both will be required to have a Psychological Evaluation. There are exceptions to this rule, but not many. A Child Custody Evaluation on the other hand can involve the children but many of the processes are the same. It is less likely that a person would be diagnosed during a Child Custody Evaluation than in a Psychological Evaluation however. Also, it is not unusual to see both a Psychological Evaluation and a Child Custody Evaluation to be ordered at the same time.
Generally, parties consent to both have Psychological Evaluations, but compelling a party to do so is also a possibility. If a party can convince a judge that there is a good reason for the evaluation based on past conduct, then the evaluation will be ordered and the other party will be compelled to surrender to the evaluation. The reason most parties consent to the evaluation however is to show that they have nothing to hide. Now if neither party claims the other has any mental health issues, it is unlikely that this would be ordered. The only situation in which this might happen is when the Guardian Ad Litem has his or her own questions as to the state of the parent's mental health and a Guardian Ad Litem is well within their power to request this evaluation to be done. A judge will rarely say no to this relatively neutral party.
Lastly, one consideration about these types of evaluations are the records that will be opened up and available for perusal of the opposing party. Many judges will use the Guardian Ad Litem as a shield for the full records involving a mental health history. The Guardian Ad Litem will have access but no one else will until it becomes absolutely necessary, which in the domestic field of law is usually right before a trial. An evaluator will usually base their evaluation on whatever relevant materials they can find and that most certainly includes prior medical records and history of mental health. Therefore while the evaluation may be available as soon as it is finished, the underlying documents that are a partial basis for that evaluation may not be available until/if a trial marks the end of the case. In this way the court attempts to protect litigants health information as much as possible, but ultimately, once the evaluation is ordered, the opposing party can push the case to Trial and expose these prior medical records.

 

Divorce and Parenting Plans with Small Children

Posted on June 17, 2016 at 11:54 AM Comments comments (236)
In every Divorce where children are involved, a parenting plan is required by the court. A parenting plan lays out the basic perimeters of the custody of the child as well as the support of the child. Part A of the Parenting Plan deals with the legal and physical custody of the child. Part B deals with the monetary issues that arise when parenting a child (for instance health insurance costs, extracurricular costs and child support itself). Unfortunately, when Children are involved in a divorce, there's always a good chance that you are going to have to go back to court some day to modify the agreement that you have made in your initial divorce. Children's lives will change and so will yours throughout the years. What may have worked before may not work five or ten years down the road.
For instance, when you have very small children, between the ages of zero and five, the children are not in school yet. This makes for a very different schedule than when the children are in school. Additionally, smaller children need more frequent periods of visitation with both parents if possible. Many publications on the early psychological development of children back this up and the courts have taken notice. This is a well-accepted rule and something that should be taken into account when the children are young. A week on, week off schedule may work well for you but realistically children this small shouldn't be away from the other parent for that long. It's well established that this is an important bonding period that requires frequent contact more so than later stages of a child's life.
Also, day care needs will change. The older a child gets, the less child care the child needs. Many parents decide that by the time a child is high school age that he or she can watch him or herself completely. Prior to that time, some after school care or before school care might be required. And in the very early years, constant daily child care is usually required until the child reaches school age. This matters a great deal because depending on how the child care costs are calculated into the Parenting Plan Part B and the Form 14 (the form that calculates child support numbers), this can drastically change the amount of money one parent owes to the other for support. And more importantly, this will affect the custody schedule as well.
It is also not unusual for a parent to find a new job or remarry and move. This can be tricky. Sometimes later in life it will become apparent that a child has a special learning need and that needs to be accounted for as well. So many things can change over time that will affect the plan that was originally agreed upon.

In general, your life will change. The younger your child is, the more time there is for your life to change  and for that to affect them—making it imperative that a new order be written. I like to try to account for every change I can at the time of the initial Dissolution or Paternity, but it's difficult to anticipate the future perfectly and account for every twist and turn. It's important that when things do inevitably change for you and your family that the order is modified. It's best to do this before problems occur and you and the other parent cannot agree on new terms that are appropriate for the children. Many times, thousands of dollars can be saved by creating a Consent Order while there is a high level of agreement about the change that needs to be made. This can be done without litigation and I think that is attractive to a lot of parents. There are enough stresses raising a child in two separate households as it is. Planning is key to a less stressful and successful division of the responsibilities of parenting of young children. 

Does Mediation work?

Posted on June 10, 2016 at 3:58 PM Comments comments (340)
Mediation can be a good tool for certain sets of people in family law cases. In some jurisdictions, a certain amount of mediation is required before you delve too deeply into your court case. Mediation can help facilitate settlement. However, if the two parties are too far apart or have poor communication skills with each other, mediation can be an expensive detour from the process. Some cases are made for mediation and some are not. A good attorney can tell the difference. Some might be in a grey area. A good attorney can tell you that as well. In my experience, a lot of people look to mediation to keep costs down. Also in my experience, it rarely does that. If money is truly an issue, I would probably suggest to a client that each party talk to an attorney to see if this case is right for mediation. If both say yes, then try mediation. In this way, you will only have a consult fee for an attorney (one for you and one for spouse or ex-spouse in the case of modifications) and then also pay a mediator for his or her time. On the other hand, without at least doing a consult first, you may think your case is ripe for mediation and find out that it is not and that you cannot come to an agreement. At that point, you have to do everything you would have had to do in the court system and you've already spent a great deal of money in mediation, perhaps as much or more than you would have spent on a retainer.  And additionally, no progress has been made. A consult might also give you an idea of the range of what you can reasonably expect if the case went to trial so you know that you are not agreeing to a bad deal for yourself.  

Will the court work around my schedule in a family law case?

Posted on May 12, 2016 at 4:57 PM Comments comments (476)
No. The courts will not work the court dates around your schedule. One of the things I tell my clients to prepare for is losing vacation days. You will have to take time off work. Your work likely doesn't have vacation days for this particular purpose. There are a few that do, but most do not. If you schedule a vacation, get insurance on it so that you can move your dates around. Also, it is probably best not to take a vacation if you can. If you have limited days off, don't make it so that you have to take unpaid days or so that potentially you could get fired. The judge will see this as poor planning and will not, no matter how much you want it to, change maintenance or child support figures. There really is extremely low tolerance for this. Additionally, not showing up is not a good idea. You are required to be in court for the dates that are scheduled for your case. If you have an attorney, it is possible that they may be able to figure out a way to do some of the less important proceedings by phone with you but you need to have a very good reason for it. Some attorneys tell their clients they better have a coroner's note if they don't show up. I won't go that far, but you better have a doctor's note saying you are extremely unwell.  If your car breaks down, you should have repair documentation for the day of the court date. Keep in mind, a big part of the judge's job is separating liars from truth tellers. They are good at it. For that matter so are attorneys.

This is an extremely serious proceeding and the courts are extremely strict about attendance. This takes precedence over most things.  If you are preparing for a divorce or a modification, build up as many vacation days as you can. If you went through a divorce with children or modifiable maintenance, it is never a bad idea to keep more vacation days than you plan to need just in case going back to court becomes necessary. 

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