Power of Attorney and Elder Abuse

COMMENT: You stated to a reader recently that it was unclear why the niece no longer had power of attorney (POA) over the aunt’s house – and a conservator stepped in. 

As an advocate against guardianship abuse, a POA can be removed through the courts like a discarded traffic citation. Many family members are blindsided by the process – which can occur with an “’emergency”’ order. 

The best way to protect your loved one is to have a Guardianship clause in the POA. This states that the document supersedes any decision made by the courts. If a guardian is needed, this is who they want. And, you should name more than one person as a guardian. You should name successor guardians in case the guardian can’t take over. 

Guardianships are a billion dollar cottage industry with little oversight. Elder abuse can happen to anyone. States with an elderly population, and those who have funds, are most at risk. Thank you for what you do.

ILYCE AND SAM RESPOND: You make a great point. It makes a great deal of sense to put the guardianship language into a power of attorney. While it’s unlikely this will occur in most circumstances where a POA is used, it’s smart to be prepared. And, potentially disastrous if you’re not.

Many POAs are used for short-term purposes such as real estate transactions or financial affairs. Other matters might require someone to sign for you. In  these circumstances, you won’t need to worry about the problem you mentioned. 

Guardianship does come into play is with long-term POAs. These are used for elderly parents or people with long term healthcare issues.

In these situations, elderly people should take your advice and add a guardianship clause with successor guardians. There are many circumstances in which the original person with the power of attorney may not be able to act in that capacity. 

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For example, an elderly person gives a POA to someone over financial matters. That POA could be used – and abused – for many years. Power of attorney abuse takes many forms. According to the Department of Justice, the agent might spend the individuals money on their own expenses rather than the individual’s needs. They might make unauthorized gifts. They could steal the individual’s property and retitle it into their own name. 

The Department of Justice offers a website titled “Mistreatment and Abuse by Guardians and Other Fiduciaries.” The webpage acknowledges that some guardians do take advantage of people in their care. “This mistreatment could be financial, physical, emotional/psychological or any other type of abuse of an older person or person with a disability.” 

Only a court can remove a guardian. But, other agencies are empowered to help. These include adult protective services, attorneys and long-term care ombudspeople. 

It’s unclear just how bad the problem is. The National Center on Elder Abuse says one in 10 adults aged 60+ in the U.S. experienced some form of abuse in the prior year. If that’s an accurate number, we’re talking about millions of potential victims. In 2019, the number of U.S. residents aged 65+ was 54.1 million, according to the Administration for Community Living. Still, that number will likely rise significantly in the coming years.

The website suggests that anyone who suspects elder abuse report it to law enforcement by calling 911, or calling your local adult protective services office. You can report abuse in a nursing home, assisted living or board and care facility to your state regulatory agency.

When you draw up a POA, make sure you consult with an estate attorney. Have them explain the document to you. Ask them about

  • Adding successor guardians to stand in the shoes of the person you want
  • And, adding a guardianship clause

©2024 by Ilyce Glink and Samuel J. Tamkin. Distributed by Tribune Content Agency.

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