Power of Attorney – What happens when the holder says no?

Can an agent’s failure to make gifts create liability for intentional interference with an expectancy?When someone executes a Power of Attorney in favor of another person, usually a trusted relative or friend, its vests enormous power and duties on the agent. With this power and responsibility comes potential liability if the agent acts in a manner that falls short of the law’s expectations. The question of how far that liability stretches is frequently an issue that is fiercely disputed in probate court. A recent opinion from the Georgia Supreme Court explores the issue of whether an agent’s failure to make changes to a last will and testament directed by the principal can constitute the basis of an intentional interference with an expectancy claim.

Generally, the law in Florida and most other states that recognize the tort of intentional interference, hold that in order to state a cause of action for intentional interference with an expectancy of inheritance, the complaint must allege the following elements: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages. Schilling v. Herrera, 952 So.2d 1231 (Fla. 3d DCA 2007). For example, a cause of action for the tort of interference with a testamentary expectancy is available where the defendant has maliciously destroyed a will, and the plaintiff is unable to reestablish the destroyed will in a probate proceeding. In re Estate of Hatten, 880 So.2d 1271 (Fla. 3d DCA 2004). Read the rest of this entry