Saturday, October 31, 2009

Take Power of Attorney seriously or don't do it at all

I just read about a couple of jerks in Portland, Oregon that abused their Power of Attorney (PoA) for an elderly aunt and I am TICKED OFF at these two dolts! After what they've done they should go to jail! When I learned about this terrible situation, I was pleased to learn they'd been arrested. I'll try to keep up with it and report back on their punishment.

To make a long story short: An 83 year old woman (I'll call her Elderly Aunt) was due for surgery, shortly before the surgery her age 60-something cousin and niece pressered her into signing a complete PoA. After signing it, Elderly Aunt was hospitalized in bad shape and her doctor told Jerk-Cousin and Evil-Niece she would likely die any time. In no time at all these evil creeps cleaned out the woman's accounts, her home, sold anything they did not want and then sold the house and car. The proceeds were distributed by Jerk-Cousin and Evil-Niece to their families. Well....Elderly Aunt recovered and was absolutely crushed to learn that she had nothing left but the anniversary ring on her finger. Jerk-Cousin and Evil-Niece claim an attorney told them to "spend it all" to avoid probate - that is absolute BULL-OOOOH-NEE! These two committed FELONIES; they abused this elderly Aunt at the most vulnerable point of her life. They are thieves. There is no way around it.

I feel so sorry for this Elderly Aunt, mainly because she is heart sick to loose all of the special sentimental things within her home and because a FAMILY MEMBER is responsible for this callous outrage. "Family" should be those people that we can trust to help us remain safe, loved and to live with dignity. A PoA should do the same - family or not! This scenario raises all kinds of issues and questions:
  • Elderly Aunt worked long and hard all her life and now faces a sparse existence during her final years. She might have been quite comfortable if someone who truly respected her acted as PoA and would work to ensure her comfort.
  • These creeps pressed her to sign when she was facing surgery and not thinking clearly. Why didn't she have a PoA before it was easy to take advantage?
  • Elderly Aunt must now rely on the paultry state stipend for personal needs like underwear and socks! After paying rent at a nursing home it's generally something like $50 per month, depending on the state of residence. This is terrible and just so unfair.
  • Does Elderly Aunt have grown kids? Where were they? Why didn't they step in to help?
  • Elderly Aunt might have a will that left things to family or charities. Did Jerk-niece and Evil-Cousin even consider this?
  • Elderly Aunt might have bills, debt or other commitments like tax liens that should be met before distribution of any assets. After Elderly Aunt's medical state, this should be the foremost concern of a PoA.
A Power of Attorney should not be taken lightly; these can be very powerful tools and give people a lot of control if not done properly. Before I write another word, I must include a disclaimer:
I am not an attorney. This blog is in no way intended to provide legal advice. You should consult an attorney in your local city or county if you have questions about granting a PoA or becoming a PoA.

Let's discuss PoA's and their purpose: PoAs are generally done so that one person can act on behalf of another. PoA's can be broad or specific. In my experience I've held both complete ( or durable) and limited PoAs. For instance, my husband went on a military deployment to the Persian Gulf and before he left we completed a PoA that gave me permission to make medical decisions on his behalf if he were incapacitated. This is called a Medical Power of Attorney and outlined his wishes for end of life care, life support and such. It was important to him that I be spared tough decisions in a poor emotional state. We also did a limited PoA for property management that enabled me to collect rents, pay property taxes, change utilities and such for rental properties that he owned. This limited PoA also listed the things that he did NOT want me to do such as the ability to sell or trade the property. The limited PoA also had an expiration date of 12 months from the date of his departure. We did not consult and attorney for either document but used templates we found on line and had them notarized at our credit union. Thankfully, I did not have to exercise the Medical Power of Attorney but I did use the Limited PoA to make changes to some insurance coverage and hook up some utilities. In those cases, both parties asked for copies of the notarized PoA and I was able to get things done with no issues.

For my Mom I hold a Durable Power of Attorney - within the State of Idaho - it's the most powerful PoA. She and my father completed these years ago, long before anyone would question their judgement at naming me their PoA. This PoA and means that I could invoke it to to do anything on their behalf at any time. They felt this was necessary because my father had a history of heart disease and my Mom's family had a history of alzheimers. ( Thankfully she has no symptoms of that ailment!) I could walk into their bank with my notarized copy and take all of their funds; I could sell their cars, clothes and property. However, I have used it rarely and only with their permission or after discussing things with them. I realize that I could cause serious problems for them so I take it quite seriously. It's my job to look out for Mom's best interests and I use her PoA ONLY for that purpose.

If you are considering naming a PoA, think about these things:
  • Identify someone who you are sure will act in your best interests, not theirs.
  • Identify someone who will work to do WHAT YOU WANT, if it's possible.
  • Identify someone who will work to ensure your physical and emotional well being and your dignity when making decisions for you.
  • Tell your PoA what you want done and put it in writing.
  • Ask him/her if they are willing to do it -often it means that someone will be mad at the PoA. S/he needs to be tough enough to handle it.
  • Complete a living will or medical PoA so the person doesn't have to make tough decisions about proloning your life or suffering with artificial means or needless - and often costly = medical treatments.
  • If you don't have a trustworthy family member, consider your attorney, a paralegal or contact your local Area Agency on Aging about volunteers who might do this on your behalf.
  • Selecting a PoA that lives nearby or someone who can readily reach you in emergency situation might be a good idea. If decisions must be made quickly, you want to avoid delays due to travel.
  • Remember that most PoA's end upon a death so having a will and naming an executor is important.
  • Before completing a PoA contact an attorney in your state of residence for their advice. Each state has specific laws concerning PoAs, living wills and such.
  • Understand if the PoA must live in the same state of your residence.
  • A credible PoA, and one that will hold up in court, should be notarized at the very least.
  • The laws that hold a PoA accountable for malfeasance differ from state to state so it's important to understand what you can do if a PoA is misused.
If someone asks you to be a PoA:
  • Take it seriously and do it ONLY if you are willing to make tough decisions for that person. It's not likely to happen but it's possible. I almost invoked my PoA to move my Mom and it would have been UGLY. I knew that going in and know that my parents asked me to be their PoA because I'm strong enough to do the hard things on their behalf.
  • Remember that you can be prosecuted for mis-management of funds, theft or fraud if the person's funds are not used to pay for their care and debts.
  • If someone asks for your assistance to "avoid probate" take them to an attorney. Don't wing it; it's way too complicated and differs from state to state.
  • If someone asks for your help to meet criteria for state aid (generally called medicaide) also see an attorney. Each state has a "look back" period, often 3, 5 or 7 years. Distribution of assets during that time can disqualify an Elder from receiving assistance for months and even years at a time.
  • Remember that being a PoA DOES NOT make you an "heir". You do not havce the right to inherit anything and it does not mean you will be the executor of their will or estate. PoA's usually end upon the death of the requestor.
  • Talk with the Elder or requestor to understand what they want and how they want to live out their years.
  • Be prepared to work with them a lot, you must talk things over if it's possible and get their inputs.
  • Be prepared to be tactful and unbiased and to do research on insurance, medicines, treatements - all kinds of things that come up.
  • Be prepared to help create solutions for the individual - they might need new walkers, subscriptions to magazines, goodies in their apartment; help interviewing and selecting home health care workers - a wide variety of things.
  • Seek out advise and help from social workers, pharmacists, doctors and local aging specialists.
  • If you can't devote the time to be a good, responsible PoA, don't do it. The Elder or requestor is asking for your devotion, assistance and concern - so don't do it if you can't give these without resentment or great inconvenience to yourself.
  • Be prepared to give out notarized copies of your PoA documents. I've had to provide them to Mom's bank, insurance company, doctor's office, Assisted living facility and to the local DMV to renew auto licenses.
If your parent or family member DOES NOT ask you to be their PoA, don't be insulted. They have their reasons. They may want an unbiased third party to reduce the risk of family in-fighting or claims of favoritism. If you ARE a PoA, be prepared to be the bad guy. You can hope it doesn't come to that but be warned: if more than one person is involved, someone is bound to be unhappy with something at some point. It's just human nature and humans being what they are - self-interested - is the reason a PoA is so important and can be vital to the safe, secure and dignified final years of an elder.