wsp Posted November 7, 2002 Posted November 7, 2002 A client has a participant who fled the country with a child to avoid prosecution for a crime (child committed, not the partcipant). Obviously the family isn't going to disclose his whereabouts or give an address to send the distribution paperwork. Nor will they even forward the paperwork to the participant themselves as they are distrustful of everybody.... Can a power of attorney be used in these circumstances to obtain the distribution? The balance is over 5k so we can't just pay it out without authorization. First the controlled group question, now this...I should have stayed in bed today!
2muchstress Posted November 7, 2002 Posted November 7, 2002 Wow, I would take the rest of the day off. Because the participant is truly unlocatable by the plan, the balance could possibly be forfeited. However, the balance would also have to be reinstated if the participant ever shows up. Just a possibility.
Blinky the 3-eyed Fish Posted November 7, 2002 Posted November 7, 2002 You don't say the plan is terminating, so you definitely wouldn't forfeit the balance. If a person under the later of NRA or 62 with a balance over $5K does not affirmatively elect to take the distribution, you have to let it sit there. "What's in the big salad?" "Big lettuce, big carrots, tomatoes like volleyballs."
mbozek Posted November 7, 2002 Posted November 7, 2002 Why can't the participant hire an attorney to apply for the benefits by submitting the distribution form to the plan. The Participant could direct in writing that the payment be mailed to the participant care of the attorney. The attorney would then forward the check to the participant and the plan would not have to know the address of the participant. While it may cost the participant a little money it is worth it because the attorney client privilege should preserve the confideniality of the client's whereabouts. mjb
wsp Posted November 7, 2002 Author Posted November 7, 2002 Thanks all, sometimes a different perspective is all it takes. We will be requesting a signature by the participant regardless of where the check is sent. However, we are going to steer them in the direction of an attorney in an effort to avoid the family becoming further involved.
QDROphile Posted November 7, 2002 Posted November 7, 2002 That attorney might want to take an ethics class and a criminal law class before making such arrangements.
wsp Posted November 7, 2002 Author Posted November 7, 2002 I think all attorneys need to take an ethics class. But, why do you say that? Seems more ethical to me than getting someone off when you know they are guilty. I'm curious as to why you question this. Perhaps it might come back and I'd like to be prepared.
QDROphile Posted November 7, 2002 Posted November 7, 2002 It matters only to the participant's attorney, not the plan.
wsp Posted November 7, 2002 Author Posted November 7, 2002 I think all attorneys need to take an ethics class. But, why do you say that? Seems more ethical to me than getting someone off when you know they are guilty. I'm curious as to why you question this. Perhaps it might come back and I'd like to be prepared.
Brian Gallagher Posted November 11, 2002 Posted November 11, 2002 what does the plan have to say about "lost participants"? you may have some recourse there. Remember: two wrongs don't make a right, but three rights make a left.
mbozek Posted November 11, 2002 Posted November 11, 2002 Why is the attorney acting unethically for facilitating the distribution? The attorney did not commit any crime and has the benefit of client confidentiality. Anyway the participant did not commit any crime. It seems that attorneys always are beleived to act unethically unless they represent the writer of the post. mjb
QDROphile Posted November 12, 2002 Posted November 12, 2002 "Fleeing the country to avoid prosecution" caught my eye and facilitating activity in furtherance of a crime and harboring a criminal came to mind. I did not offer a conclusion one way or another, but I think the issues are interesting enough to warrant careful consideration, as I suggested. Attorney/client privilege is a not shield for everything. The rules are very tricky when criminal behavior is involved, especially when the alleged criminal and accomplices have not been apprehended. I don't like lawyer bashing much, but everyone has to take a joke now and then.
mbozek Posted November 12, 2002 Posted November 12, 2002 Q: On what laws do you base your legal conclusion that a crime has been committed by the participant? Better leave the legal analysis to people who know what they are talking about. mjb
Guest Reywal Posted November 12, 2002 Posted November 12, 2002 mbozek Tsk tsk tsk What happened sweetie? Did we hit a nerve? Don’t take it so personally You know we lawyers are the brunt of everyone’s jokes- heck, even I tell them. I make sure I do before anyone else does- so theirs will have less impact.
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