Text Size:
Legal Articles
By Liz Taylor
How to Make Durable Powers of Attorney Work Better
It’s tough enough when an older person refuses to name someone she trusts to make decisions for her when she can’t. If she develops dementia — a common occurrence for older people, especially as they age – no one will have the authority to pay her bills, hire care, get her groceries or otherwise protect her best interests. But even worse is if she names someone who doesn’t care about her, steals from her, or otherwise does a poor job. What can the people who care about her do?
Durable powers of attorney (DPOAs) for finances allow your parent or loved one to name people they trust (called "agents") to make decisions regarding their money, care, taxes, real estate and other financial matters if they become mentally incapacitated. Every adult needs a DPOA — we can never predict our futures — but this document is especially important for older people. Without one, you and other family members are likely to experience enormous and unfair burdens trying to help the person maintain her life (often against her will). However, if she names the wrong person, that burden can become exponentially worse if the named person does a bad job.
The key to making a DPOA work is naming an agent who's honest, wise, reliable and will act in your parent's or loved one's best interests.
So what happens if this doesn’t happen — what if the named agent is irresponsible, in denial, is a thief, or does a lousy job? Here are some real life examples that I've received recently — from caregivers, other family members, and friends.
My great-aunt needs help. She lives alone in her home of 48 years, but she's not taking care of herself. The house is a mess, the laundry goes undone, her food rots in the fridge, she's eating poorly and her dog looks very thin. My mom's nephew stays there occasionally — my great-aunt named him power of attorney several years ago, but he sees nothing wrong, and he refuses to let me find services for her. She does what he says. I don't think she's going to make it unless someone intervenes.
I'm very close to my 89-year-old grandfather. A few years ago, his daughter — as his power of attorney — sold everything he owned while he was visiting relatives and moved him to another relative's home. The shock exacerbated his slight dementia, but he's doing much better now. He's living in an assisted-living community where he has friends (the only guy on his floor!), his memory has improved, he has privacy and he's happy.
Unfortunately, his daughter is now talking of moving him to a nursing home where he'd share a room and have nothing but a bed. He walks fine, dresses himself and is otherwise in pretty good shape. I'm trying to figure out what to do.
Years ago, my 82-year-old mother named her 'younger' friend of 79 who lives 2,000 miles away as her power of attorney. The woman has no idea how demented my mom has become. Because they talk on the phone occasionally; she thinks she can tell everything's just fine. My mother currently lives in assisted living, but now she needs a place that specializes in memory care. My mom's friend refuses to allow my mom to move, and she’s about to get kicked out.
What can caring friends or family do in these cases? One of the first things: Determine whether the agent knows what to do, says Janet L. Smith, a Seattle attorney specializing in guardianship and protecting vulnerable adults. There's no training for this role, no guidelines, and dementia is unlike any other health diagnosis any of us will encounter. Knowledge about this illness is critical.
If the agent is willing to seek help, a geriatric care manager — a nurse or social worker experienced in older adult needs — can be an invaluable resource. For instance, the grandfather in the example above isn't appropriate for a nursing home, while the great aunt definitely needs a great deal more help than she’s getting and is probably appropriate for assisted living. A care manager can guide an agent to take the right steps — and recommend other professionals as well, such as a bill-paying service, home-care agency, moving experts and others.
If the older person still has the ability to execute a new DPOA, he or she can revoke the old document and name a new agent. When there are no other trustworthy or capable family members to serve in this role, a professional fiduciary or professional guardian may be the appropriate choice.
It's always good to name more than one person to serve as someone's agent (in sequential order, not at the same time). Then, if the first person named can't or doesn't want the job, someone else is available.
But let's say the situation is worse — you suspect the agent is neglecting or abusing the older person, or the older person is neglecting herself, and no one can intervene. Any concerned citizen should call Adult Protective Services. Anyone can also ask the police to make a welfare check. Make the same calls if you think financial exploitation is involved — co-mingling funds, stealing, or giving assets away inappropriately. Helpful information is available at the National Center on Elder Abuse, including contact information for your local Adult Protective Services Office, at www.ncea.aoa.gov (go to "state resources").
The most complicated scenarios, says Smith, involve fights among family members. A daughter, say, has power of attorney, but her siblings are furious with how she's handling their mom's care or finances. A first step: Try holding a family conference mediated by an experienced care manager to see if a consensus can be reached. If not, a court is likely to appoint a neutral guardian, rather than a family member, to serve instead.
For information about dementia, contact the national Alzheimer's Association at www.alz.org or call toll free 800-272-3900.
Leave your comment
You must be an icarevillage member to comment on this article.
Join today
to take advantage of this service or
Sign In
if you are already a member.
