Bar News - February 23, 2007
Reconsidering Legal Documents for Domestic Violence Victims
By: Robert Howard
Editor’s Note: The author composed this article for the DOVE Newsletter to create awareness of further legal measures that practitioners should consider if they represent a client who is a victim of domestic abuse. Under NH RSA 173-B domestic violence means physical violence, and is generally accompanied by sexual assault, emotional and psychological intimidation, verbal abuse, stalking and/or emotional control.
A domestic violence victim may have executed legal documents which should be reconsidered in the wake of abuse, even if a restraining order has not been sought. The following addresses some of these kinds of documents.
Power of Attorney
This is a document executed by a principal, which gives to an agent (often the spouse), the power to manage the financial affairs of the principal. In the estate planning process, the victim, particularly if elderly, may have signed such a document as a matter of course. Naturally, this gives the agent another element of control over the victim, and also provides the agent with the ability to do considerable financial damage. It is urgent that this be cancelled immediately. I suggest notifying any bank or other custodian of property that it has been cancelled, preferably in writing delivered by hand, or at least by certified mail. Likewise, notice of the cancellation should be given to the abuser. If substantial assets are at risk, service on the abuser by the sheriff would be appropriate. If there is real estate in the victim’s name, a formal revocation of the power should be recorded at the appropriate registry of deeds.
Durable Health Care Power of Attorney
A Health Care Power of Attorney, prepared pursuant to RSA 137-J and its predecessors (see RSA 137-H, now repealed), gives an agent the power to “pull the plug” under certain circumstances, including the mental incapacity of the victim. This should be cancelled, preferably by executing a new durable power, with a new agent. A copy should be given to the victim’s health care provider. Notice should be sent to the abuser, but without the need of the extra precautions in the previous paragraph, since the health care provider will likely be involved in any decisions made under the power.
Appointment of Guardian
RSA 464-A:10 allows a person to name a guardian for herself, in the event that she becomes incapacitated. It also allows the person to state the name of anybody who should not be appointed as guardian. This will be given strong weight by a Probate Court if a guardianship becomes needed. No special formalities are required by the statute. The form would simply reference the statute, state the preference for guardian, and the exclusion of the abuser, with date and signature.
Will and Trust
If the victim is married to the abuser and they have children, and if the victim has or is likely to acquire substantial assets, it would be wise to consider a will naming a reputable trustee for minor children, and stating a preference for guardian if (as is likely) the abuser is unfit. The reasons for determining the unfitness should be set forth. Also, in a will it may be appropriate to leave nothing to the abuser. RSA 560:19 allows for the disinheritance of a spouse guilty of conduct which constitutes cause for divorce (grounds not including irreconcilable differences).
A careful review of other documents is in order. These might include life insurance policies, deeds and title to tangible and intangible property including bank accounts and investment accounts. Especially if there is an outstanding power of attorney, actions should be taken to protect assets. These might include withdrawing all funds from bank and investment accounts, changing beneficiaries of life insurance policies, retirement programs, annuities and the like, and breaking joint tenancy on real estate with a deed which includes a recitation that any powers of attorney have been revoked.
Robert Howard is a private attorney located in Henniker. He has served as treasurer of the NH Bar Association since 1993, is a longstanding volunteer for the Pro Bono Program and since 1995 has volunteered for the Domestic Violence Emergency (DOVE) project providing legal representation to domestic violence victims at final restraining order hearings.
If you are interested in becoming a DOVE Project volunteer, contact Pam Dodge at 603-715-3230 or email@example.com.