Durable Powers of Attorney – Part 3

September 5, 2004

A common example in an Elder Law attorney’s office might go something like this…A son may come into the office and say that his Mom is bedridden and has been diagnosed with the beginnings of Alzheimer’s disease. Immediately we are concerned with the capacity of the client, at least down the road. As lawyers we know that an expensive guardianship adventure awaits the client unless a durable power of attorney is quickly executed. Moreover, if we prepare a Durable Power of Attorney, it would usually contain very liberal powers, such as the power to make gifts and self-deal to enable effective Medicaid and tax planning. This in turn makes it easier for a would-be abuser to abuse.

So, should we do the easy thing? Should we prepare the durable power of attorney and hand it to the son. this would be the easiest and in many cases the best solution. The son is usually looking for a quick and inexpensive solution to his problem and we are usually trying to provide such a solution. This may in fact be what the elderly person wants as well.

But shouldn’t we insist on going to Mom’s house and talking to her? Clearly this strategy would provide the best protection for Mom. But is it overkill to go this far in every case? Who is the client in this situation anyway? The Mom or the son? Does it matter if we get the feeling that the son is on the up and up? Wouldn’t this be a waste of time and money in most cases, as most children are not out to financially abuse their parents? This is an ethical siutation that Elder Law attorneys face everyday. Do we need a hard and fast rule for these situations or as true advocates for the elderly, can we satisfy our ethics and our natural inclination to serve the elderly by using our judgment on a case by case basis? Besides, are clients willing to pay for the conservative service? At least for the clients who seek our advice, I believe the case by case approach is the most practical approach, in spite of the fact that some will fall through the cracks.

The bottom line is that durable powers of attorney are being abused. Legislation should be enacted to balance the need for a simple and convenient solution with enough safeguards to prevent abuse. Involving attorneys in the process may help. Perhaps requiring the formalities of a Will signing will force more seniors to seek legal counsel before signing such a powerful document. Lawyers are involved often in this process anyway and they can at least exercise their independent judgment as to whether a particular elderly person needs further protection. Many may still fall through the cracks, but a balanced solution is what is called for under these circumstances. A power of attorney should be easy to obtain in most cases, but the individuals need to appreciate that the person they choose as their agent may have a different agenda. We and our clients need to proceed with caution. In the end, perhaps our greatest goal is to continue to educate the public on the durable power of attorney’s scope, limitations and potential for abuse.