When it comes to dealing with a power of attorney, it is important to note that the terminology used by the parties isn't controlling. In other words, for the debtor to simply state that a power is coupled with an interest in the power of attorney doesn't make it so. 3 Am. Jur. 2d Agency § 62; 28 A.L.R.2d 1243 § 2[c].
The lengths to which a judgment debtor will go to avoid collection is shocking to some, but not to an experienced commercial collections attorney. One tool not often used by the debtor, and challenging in its intricacies, is the irrevocable power of attorney, particularly when coupled with a charge of attacking the instrument as unenforceable. Irrevocable Powers of Attorney are a rare bird, and there are a few hurdles to get through in order to have a Court deem them unenforceable.
Have you attempted to collect a judgment against an individual to no success? One option is to consider the means of the spouse. California is a community property state, meaning the community property of a debtor's spouse or domestic partner may be available to satisfy a judgment. Indeed, California law clearly states that the community property interests of the debtor and non-debtor spouse are generally liable for debts incurred by either spouse either before or during the marriage and prior to separation, whether the debt is based on contract or tort. California Family Code §§902, 910; Litke O'Farrell LLC v. Tipton (2012) 204 Cal. App. 4th 1178, 1181-82.
Almost without exception, there is a strict one year statute of limitations for bringing a claim against an estate which starts to run from the date of the death of the debtor regardless of whether you know about it. See, California Code of Civil Procedure Section 366.2. A short limitations period, while seen as beneficial to promote the prompt settlement of estates, can wreak havoc for a judgment creditor. Death alone does not render a debt uncollectible. It just means you need a competent creditor attorney in Los Angeles to navigate the probate process.