By Fredrick P. Niemann, Esq. a NJ Power of Attorney Law Firm

Here’s a story gone bad.  An elderly person executed a power of attorney in favor of his daughter and in return, she transferred the home to herself, without his knowledge, even though the document didn’t give her the power to do so.  He sued; he lost.  Why didn’t he get his house back?

A news reports of the case stated that the individual lost his case because the appeals court said he filed his complaint after the 4 year statute of limitations ran out.  He signed the POA in 2004 and discovered the deed transfer in 2010.  It’s not clear from the new stories when the deed transfer occurred or when he filed his lawsuit.   A couple of questions come to mind.

In New Jersey the statute of limitations to file an action for fraud is 6 years, so perhaps the plaintiff in this case would have had a better result in this state.  But, there is also something known as the discovery rule which has been carved out over time by New Jersey courts.  It says that if the injured party didn’t know or have the ability thru due diligence to discover the harm, then the time limit under the statute is “tolled”.  This might have given the elderly victim time to file his claim.

There also is a New Jersey law that permits the statute to be tolled if the injured party is insane.  If the father was suffering from dementia, for example, to the extent that he did not know about the transfer, he might have an argument that the statute should be tolled, which would get him the additional time to file his claim.

The outcome seems so obviously unfair, given that the daughter so blatantly violated the terms of the power of attorney that it’s hard to understand why the daughter should “get away with it”.  But the law can be harsh and a rule is a rule.

The case highlights both the pros and cons of a very simple document known as a power of attorney which can be so dangerous if put in the wrong hands.  The law allows for an easy method that everyone can avail themselves of, to put a plan in place to designate another to act as their surrogate decision maker.  That’s a good thing.  Otherwise we all would have to go thru a time consuming and expensive process called guardianship.  The court system would be overburdened and the outcome wouldn’t always be satisfactory, anyway.

But occasionally, when that power is put in the wrong hands, as in this case when he designated his daughter as his agent, something can go horribly wrong.  The lesson learned is that if something doesn’t seem right, families need to investigate and address it as soon as possible.

Contact me personally today to discuss your New Jersey power of attorney or elder abuse matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.