TJ is a long-time copywriter experienced in the areas of medicine, health, and law.
Many people don’t realize what a power of attorney (POA) is or how it can be used. When my mother made out her will several years ago, she included a POA in my name. After going through a very difficult time with my father when he developed Alzheimer’s, she didn’t want to put the same kind of burden on me. I couldn’t be more thankful that she was in her right mind and she remained active until the week before she died.
A Power of Attorney is a legal document that allows a person of your choice to make decisions for you in case you become “incapacitated.” The laws governing POAs vary somewhat from state to state, but many of the details are the same. A lawyer drafts the document and keeps it on file until you need it. It sounds simple enough and many people, like me, never have to use the power the document invokes. Those who do sometimes take advantage of the power and use it in a way it was never intended.
The person whose name is on the power of attorney, and whom acts for the other person is called the attorney-in-fact, or agent. The person whose behalf they act on is the principal. POAs differ in the powers that they give the agent. The principal can decide whether to give an agent full power over their finances and/or medical care, or whether to enlist limits. Even a general POA is wide in scope, allowing the agent to enter into contracts, access bank accounts, and determine what medical care the principal receives.
Standard Vs Durable Power of Attorney
A standard Power of Attorney is sometimes used for specific things. For example, if a friend or associate is traveling to a trade show and you want them to make a purchase for you, you might give them the power of attorney to make the one-time purchase in your absence.
A durable Power of Attorney differs in that it lasts over time. If you complete a durable POA when you’re 25 years old and get into a car accident that paralyzes you when you’re 60 years old, it’s still good. You might have a durable POA for your spouse to make decisions for you in case you become incapacitated. (Just make sure you revoke it if you get divorced)!
The same is true in business settings or other areas of your personal life that change. If a business dissolves or your personal relationships change, make sure you change your POA too. You don’t want to put this kind of power in someone’s hands if they are angry at you or who might want to get revenge for the failure of any relationship.
Comparing Wills to Power of Attorney
People often file a POA at the same time they make a will. No matter what type of POA you have, it becomes void at the time of your death. The person who is listed as the agent on the POA cannot make any changes to the principal’s will. That means you should be able to give someone you trust the POA to handle your affairs without worry and have your assets go to the beneficiaries you want when you die. Often, it works exactly this way. But more times than you might imagine, it doesn’t. There are two reasons a POA doesn’t always go the way you expect it to.
- People don’t always act the way you think they will.
- The POA has access to all of your property while you are still alive but incapacitated.
Most people plan carefully for their deaths. They want to make sure their loved ones have what they need when they aren’t there to provide for them. Even those of us who live long, happy lives want something to pass on to our children and grandchildren. They put a lot of thought into dividing their assets fairly.
How many times have you seen a person’s beneficiaries battle out their disagreements over a will? Even close siblings can become fierce enemies when they feel the other sibling is getting more than their fair share. Sibling rivalry and jealousy have been the source of many issues like these since Cain slew Abel during Biblical times.
The bottom line is that you never know how people will respond when they find out what’s in a loved one’s will. When one of the beneficiaries gets the POA before the person dies and the will becomes enacted, they have the opportunity to change the end result.
Is It Legal?
No. When you make someone your agent, they have the legal duty to act in your best interests. They aren’t permitted to take anything for themselves. The problem is, when you’re lying in a hospital unable to care for yourself, you can’t manage or monitor your affairs. You have the legal right to pursue restitution through a civil lawsuit. But you might not be in a position to know what’s going on or get the ball rolling even if you do.
If you make the wrong decision about who acts on your behalf, they can take any of your property under the premise that it’s for you. There’s little oversight and not much for the agent to worry about if they do get caught.
My Learning Experience About POA
A close friend of my family, whom we’ll call “Bob” for the sake of this story, is a young 82 years old. Bob owns his own home and a lot of valuables that he keeps inside it. His pickup is his pride and joy, and he loves going to concerts, fishing, and eating out with his closest friends. He has a grown grandson and a granddaughter. His son, who is both grandchildren’s father, passed away several years ago.
Bob has always been there for his grandchildren, doting especially on his grandson. Bob has had his fair share of health problems over his lifetime. He has had a heart attack and a couple of episodes of skin cancer. Last year, he decided it was time to get a will in order and determine the best way to go about settling his estate.
Bob decided that he had always given more to his grandson, so he decided to leave the bulk of his estate to his granddaughter. He also decided to make a power of attorney naming her as his agent in case something happened where he couldn’t make his own decisions.
Bob has excellent legal advice. He had been friends with his attorney for longer than he had used his legal services. Like most average citizens, there weren’t many occasions when Bob needed legal advice.
It wasn’t long after Bob got everything in order that he had a stroke. His grandson had recently moved away because of his job. He arranged to take Bob to a nursing home near his home once he was released from the hospital. Bob began to recover, and soon wanted to return home. The grandson arranged for him to go to the nursing home near Bob’s home: not to his own house.
Bob became restless in the nursing home quickly. The stroke hadn’t affected his mind and he was completely capable of making his own decisions. The problem was that the nursing home wouldn’t let him leave. When he began to make threats out of frustration, they complied by placing an ankle bracelet on him.
After a few weeks, we got word that Bob was once again being moved to a different nursing home. Supposedly, the nursing home was afraid that a frail, sick, small 82 year old man who didn’t have access to any type of weapon was going to shoot them or blow them up. The new facility is a couple of hours away from home. Now, it takes his friends even longer to get to him so there’s no one stopping by each day to check on him and help keep him cheered up.
Bob has a sister that lives a day away from the nursing home. She can call and talk with him, but she can’t get any information about his treatment or his progress. She has made the trip a couple of times. Even then, she can’t find anything out. Bob, an independent man who has done a lot to help others during his lifetime, is confined inside a nursing home with nothing to do but watch TV or stare out the window. He hasn’t been permitted to go outside since he arrived. He is in a medical prison.
My part of this story begins with researching the limits of power of attorney and what options we had to help him. It turns out that revoking a power of attorney has only one requirement; that the principal is of sound mind. Since that wasn’t an issue, we thought everything was under control when Bob contacted his lawyer/friend and told him he wanted to change his will and remove his granddaughter as power of attorney. He wasn’t able to contact his attorney until we contacted him on Bob’s behalf and had him make the call to the nursing home
It took weeks, but the attorney finally made the trip to the nursing home with the papers required to revoke the POA. Bob signed them and waited to get his freedom back. I don’t know if the attorney/friend told him they had to be filed. All I know is that they don’t. All the attorney had to do was show the notarized revocation form (the attorney is a certified notary) to the office at the nursing home and have them put them in his file. They don’t have to be filed with any agency to make them valid. They just need to be presented to the agent and all third parties. None of that ever happened. It didn’t make sense to us, and Bob continued to grow frustrated as he couldn’t get out.
It didn’t make sense to us either. Why didn’t having the attorney take those steps take care of the POA that was keeping Bob in a medical prison? It wasn’t until Bob’s sister contacted the attorney and asked him directly that we found out. The attorney said that the grandson had told him not to file the papers. He knew when he went to the nursing home that he wasn’t going to help get Bob out. Furthermore, the grandson who isn’t listed on the power of attorney and who has no authority seems to be calling the shots.
The POA hasn’t been revoked and the will hasn’t been changed. Neither grandchildren is calling Bob to check on him and they don’t come to see him. So the next question for us is, why don’t they won’t him back home?
Like I mentioned, there are lots of valuables in Bob’s home. There is also some significant cash involved, along with the value of the house. Yesterday, my significant other range into another of Bob’s old friends who grew up with him. There are rumors that the grandkids are selling everything Bob owns. That includes the truck that he loves so much.
People make and revoke power of attorneys all the time. It is normally a simple process if the principal understands what is happening. Normally, a client’s attorney acts in their best interests and follows their wishes. It’s illegal if they don’t.
Further Complications with the Legal System
It turns out that attorneys have a code. They don’t like to interfere in legal matters that already involve another attorney. The obvious issue with this is that concern for the attorney should be a priority. Most of the victims of POA abuse are the elderly and the vulnerable. They should always have their legal rights protected; not to mention their moral ones. It isn’t fair to let them lose everything they’ve worked for because they are incapacitated. Now, let’s talk about the word “incapacitated.”
The legal definition of “incapacitated” is “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.”
It’s the last part that you need to focus on, here. “Lacking sufficient understanding or capacity to make or communicate responsible decisions.” Bob is completely capable of making his own decisions. His only real problem is his left arm which he hasn’t regained full use of. He uses a wheel chair to get around because he has always had a weakness due to a childhood illness. The stroke has left him weaker and he is still recovering. If we locked up every person in the same condition as Bob, there wouldn’t be any room to roll the wheelchairs around in the nursing home.
In Kentucky, there are more than 400 organizations that help people live at home in spite of an illness or disability. I’m sure there is an equally large number of organizations in every other state. This man was strong enough to drive to a restaurant and go inside for breakfast on the same morning he had a stroke. It was his friends that insisted on his going to the hospital! How can anyone argue that he isn’t well enough to stay in his home?
If you’re considering signing a power of attorney in case you become incapacitated, think twice about who you sign your life over to. Bob was confident that he could trust his grandchildren to do the right thing. He still doesn’t know that he can’t trust either of them, much less his attorney. Everyone is afraid the stress over learning what has happened will cause another stroke or worse. Right now, I’m worried every day that the stress of being locked inside a nursing home with no rights to live the rest of his life will kill him.
Where Bob Stands Now
After finally obtaining a copy of the power of attorney, a family member will deliver it to Bob next week. They will encourage him to call his attorney and give him one more chance to file the revocation on his behalf. If he doesn’t, or as I suspect, won’t talk with him at all, we will go forward in a different direction. He can either try to contact a lawyer who doesn’t know about the other lawyer’s failure to act (with our help) or we will print the form off the internet, have a notary oversee the signature, and submit the papers ourselves.
I’m not a lawyer, but I have been involved enough legal issues to know that attorneys are never straightforward about your rights. I’ve also written for a lot of attorneys as a ghost writer. I know their selling points, and how they sometimes take the long way around to get more money for themselves.
Everyone deserves to live their lives where they want doing what they love. I mourn every day that Bob loses because of these selfish grandchildren who don’t care about this man’s well-being. I'm nearly as disappointed in a legal professional who claims to be putting his friendship ahead of his legal obligations.
I want everyone to know the potential outcome for giving someone a power-of-attorney over their lives. You never know when you might become incapacitated and open the door to the wrong person. If you need a power of attorney, make sure you have someone you can trust. Consider putting limits on their range of powers. Also choose an experienced attorney who always puts their clients' needs first. Bob has a lot of caring friends working to get him his freedom back. How many people out there don't?
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.
© 2019 Tammy J Nolan