Power of Attorney Abuse: What to Do if Someone You Know is Affected
UPDATED: December 16, 2019
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As with many forms of abuse, power of attorney abuse is often excused or justified: “I'm entitled to it. 'When' doesn't matter.” And as with every form of abuse, it is wrong, and often won't stop, until someone recognizes the signs of abuse and does something about it. But unlike many forms of abuse, power of attorney abuse masked by the apparent authority of a power of attorney may make of its victim a silent prisoner. Trapped by age, health, and economy, many people are literally imprisoned by the person they legally asked for help: agents empowered to make life and death decisions under a POA.
Creating a Power of Attorney Without Power of Attorney Abuse
A popular law firm claim is that most aging issues can be tackled using a power of attorney. However, a power of attorney is not a perfect solution in every case. In fact, estimates are that, of the total number of abuse cases against seniors, 44% of cases are financial. Of these cases of financial abuse, over 70% are estimated to be committed by family members. This situation often results from parents depending on the least reliable family member. Someone who is busy, or moved away, or has diverse interests of their own may not be able to serve as a POA agent.
There is no hard and fast rule, when it comes to selecting the ideal family member to act as your agent. However, there should be frank discussions among all family members about the burdens of the POA responsibility. “Burn out” is a real risk, and making someone feel inferior may simply lead to their hiding initial problems, which can exacerbate into a crisis of conscience later. In that case, all family members share the blame, when all they did was 'shift the burden.'
The special needs of the infirm, disabled, and frail or impaired explain why there are special services for these groups of people. The magnitude of the problem of power of attorney abuse, however, is suggested by federal action (SB 2794), aimed at protecting seniors from predatory practices. This is among the first federal legislation of its kind ever to protect the vulnerable elderly.
Where to Turn For Help for Power of Attorney Abuse
If you are dealing with power of attorney abuse, there are a few key places to turn for help:
State Safety and Welfare Services:
There are crisis hotlines, usually in the Blue Pages of a phone directory, for reporting suspected abuse against vulnerable groups. Because a POA is usually designed to protect someone in one of these groups, this is the place to report initial suspicions. If there is no local service listed, contact your state's Attorney General, who will either have their own abuse unit or be able to direct you to a local county investigator.
In addition to classic financial abuse, power of attorney abuse situations bear similarity to identity theft issues. It is not legal to go beyond the four corners of a power of attorney, but classic abusers feel emboldened to ignore restraints within the document...often boldly ignoring the natural expiration of a power of attorney and treating it as if it is a durable power of attorney. In doing so, many local business crimes units, in local or state police forces have specially trained officers to investigate allegations of wrong doing.
People who financially control their power of attorney abuse victims may try to isolate or disparage what the victims are saying. Encouraging a victim to rebuild social networks — especially if you are not a family member---may be part of saving that person. Also, by encouraging shut-in victims of power of attorney abuse to get out, it increases the likelihood of contact with a myriad of those who can help put a stop to abuses. Social workers, clinicians, physicians, counselors all have special duties to report suspected abuse of the vulnerable and can help spot and deal with a power of attorney abuse situation.
Your Own Attorney
If you suspect abuse by a family member acting under the shield of a power of attorney, immediately contact your own attorney to address legal options.
Power of attorneys, not unlike their owners, need periodic check-ups. In order to keep trust in the instrument, there also needs to be verification. Thus, many groups now use power of attorney templates, including some third-party templates, that require periodic review. Disclosing this fact well in advance to anyone agreeing to serve as a personal representative often keeps expectations, and professionalism, at a much higher mark. Perhaps just as importantly, the personal representative realizes they have no reason to feel isolated, and are encouraged to seek help if they feel in over their heads.
Conventional wisdom continues to repeat the apparent factoid: “As America's Baby Boom generation continues to age, problems associated with aging will continue to increases at a rapid rate.” In fact, however, when it comes to power of attorney abuse, there are reasons to reject the standard wisdom. Improvements in health also suggest need for better tools to increase the use of financial planning and health care tools. Power of attorneys should be helping to decrease abuse.
Remember: The lack of a power of attorney is a bigger potential problem than the presence of one. The important facet of this is to be sure someone actually gets a 'good' power of attorney.