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Why would I need a Power of Attorney?

A Power of Attorney allows you to name a trusted person to make personal, financial, or healthcare decisions on your behalf in the event of a medical emergency, declining health, or just a long-term absence. For individuals, this can be extraordinarily helpful to set up as a way to plan for expected or unexpected situations, such as an extended trip abroad or a progressing health condition. For business owners, a Power of Attorney may allow a designated agent to step into your shoes and keep your business running if something happens to you.

A Power of Attorney can be a useful legal tool, but it can also be abused. While a springing Power of Attorney does not go into effect until you are deemed incapacitated, a Durable Power of Attorney becomes effective upon signing and remains in effect even after incapacitation. Because a Durable Power of Attorney can cover a lengthy period of time and encompass a wide range of personal or business affairs, it is more susceptible to abuse.

What are examples of Power of Attorney abuse?

While Power of Attorney abuse can come in many forms, one of the most common forms is financial abuse. This typically involves the agent, or person who is granted control, misusing the money or assets that they control. 

It is not unusual for an agent to use the money or assets to pay themselves for their services or reimburse themselves for expenses, but when those payments are unreasonable, it may be considered financial abuse. When they spend money or sell assets for a reason other than to carry out their duties as an agent, doing so may violate both the law and their responsibility to you.

Generally, the Power of Attorney agent has a duty to act in your best interest. When the agent misuses their authority and does not act in your best interest or when the agent uses the Power of Attorney to benefit themselves at your loss, they breach that duty. When they breach that duty, they may also be violating state or federal laws on elder abuse, exploitation, embezzlement, forgery, fraud, or theft.

Abuse can take other forms as well, including making spiteful or bad medical decisions, as well as the actions people more commonly associate with abuse, such as physical hitting, neglect, or verbal abuse.

How to identify Power of Attorney abuse?

It can be difficult to know when there is financial or other forms of abuse aside from more obvious signs, such as bruises or bed sores, which may point to physical abuse or neglect. Without access to account statements and records, there is not much that a person can do from the outside.

An agent who seems to be living well beyond their means after taking control may warrant some further investigation. If assets are being sold, that's one thing that may be noticeable as well. However, it may not be a sign of abuse, but rather just financial management.

Without the specific details, financial abuse can be very difficult to detect, especially when good quality care is still being provided. As these matters are unique, it's smart to ask a lawyer about your suspicions before you take action.

If you do find evidence of abuse, you can contact law enforcement or file a petition in court to get the authorities involved. Again, it's important to get legal advice before taking action as doing so may have the opposite effect than intended and lead to the agent using those limited resources to retain an attorney to protect themselves.

What should I do if I suspect Power of Attorney abuse?

The options for addressing Power of Attorney abuse will generally depend on the type of abuse. If it is your own Power of Attorney, seeking legal help from an attorney is a good first step. You may need help to even do so. In some situations, such as physical abuse or neglect, contacting law enforcement as soon as possible after an incident may be necessary.

If the person affected by the abuse is 60 or older, they may be eligible for free legal help. To find applicable programs or check eligibility for free services, visit the federally funded Eldercare Locator tool or call their toll-free number: 1-800-677-1116.

If you suspect a friend or loved one is being abused or taken advantage of by their Power of Attorney agent:

  • You can report suspected physical abuse or neglect to local law enforcement. Providing evidence, such as photos, video, or a statement can be helpful.
  • You might consider contacting an attorney to discuss your suspicion before contacting law enforcement if you suspect financial abuse that is not blatantly obvious. These matters can be rather complex. What you believe to be unreasonable conduct may actually be standard procedure.
  • You may contact the state or local adult protective service agency, which may investigate abuse or fraud committed against seniors and adults who have a disability. Find your state or local agency by visiting the National Center on Elder Abuse.

It may sound scary to create a Power of Attorney, but when a person starts losing their ability to make decisions for themselves, such as when parents age, it's an essential part of a solid estate plan. Having a Power of Attorney agent chosen by the person who will benefit from the assistance is much preferred to the alternative of a court ordered conservatorship, where a court will decide who makes those decisions.

If getting your loved one to agree to establish a Power of Attorney is too much for them, you can start small with an Advance Directive to ensure their wishes are carried out. Rocket Lawyer has a variety of estate planning documents you can fill out online, from anywhere, and have reviewed by a licensed attorney.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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