By Ameenah Fuller, MPP and Carolyn A. Brent, MBA
It first starts with a mild case of forgetfulness. Then relatives begin to take an interest as the elder relative continues to fade. Knowing the senior is unable to make decisions about POA (Power of Attorney), some relatives begin to act predatorily. They look to seize control of their finances, medical directives and other business. There is a growing trend in these types of cases — one could even call it an epidemic. It is a troubling trend of elder abuse through the misuse of POA.
Not even famous seniors are exempt. The actor Mickey Rooney testified before Congress on the abuse he received at the hands of his stepson. The legal and medical professions are partly responsible for this type of abuse, often letting complaints fall on deaf ears. It is unbelievable that this type of abuse is acceptable in the United States of America. In my opinion, red flags should be raised when a person with POA gets involved only in the last part of the seniors’ life. You must ask yourself why they waited so long. Abuse of POA is such a critical issue that additional stipulations should be required to question the person’s intent and motivation seeking Power of Attorney. I believe it is important to establish guidelines that indicate a person must demonstrate a documented working relationship with the senior citizen for at least three years prior to issuing a POA. The exception, of course, is a medical emergency requiring an advance directive.
While writing this article, I kept pondering the scary side of POA. I wanted to see how many people are addressing this issue. In my research I discovered Carolyn A. Brent, a senior rights advocate and author of “Why Wait? The Baby Boomers’ Guide to Preparing Emotionally, Financially & Legally for Your Parents’ Deaths.” I found that Ms. Brent had experienced some of the same issues in 2008 with her father as a caregiver. She stated:
“My dad appointed me as his legal fiduciary and medical representative in the event of his disability and/or death. When my dad became ill, a family member falsified Federal documentation and appointed herself as the fiduciary and medical representative. This relative had never taken an active role in the care of our dad. Because of the failure of the VA to take the time to verify her false documentation, my legally appointed responsibilities for my dad were taken away from me and awarded to her. Unfortunately, my dad and I were unaware of the fact that we should have had both Federal and State legal documents in place to avoid such misrepresentation by a family member. Because of this glaring flaw in the Federal system, I am now actively working with Honorable Congressman Jerry McNerney in the hope of Congress passing a law that would make the Veterans Administration responsible for protecting disabled veterans’ decisions about the appointment of a fiduciary representative in the event of their disability.”
According to Ms. Brent, it is important that POA be covered by federal, state and county jurisdictions. If not covered by all three, someone else can go through another jurisdiction and get another POA. This is frequently where many conflicts will arise between family members.
It is important that families discuss decision-making responsibilities sooner than later and to involve the elderly parent in the process while the parent still has all cognitive ability. Elderly parents should never worry about hurting their children’s feelings by selecting the proper representative to care for their needs later in life. It is important to seek legal advice and designate your representatives with specific instructions on how you wish your POA to administer decision-making on your behalf. This includes medical, legal and financial decisions. According to Ms. Brent, “aging parents need to stand up to the plate and voice their thoughts and wishes to their adult children to avoid possible future sibling rivalry and abuse.”
How else to avoid the scary side of POA and prevent elder abuse? It is no laughing matter to whom you give Power of Attorney and Durable Power of Attorney may have serious legal consequences. You are giving someone the power over your life decisions. Keep in mind: a fiduciary is the highest level of trust. So, preparing early is key to avoiding some of the traps of POA. Don’t be afraid to confront this issue head-on! Discuss these topics with a confidant or legal representative before entering into any agreement. I asked Ms. Brent what other advice she may have to give to a family preparing for POA. She said, “Baby Boomers of aging parents should pull their family members together, if possible while their parents are still healthy, cognitive and mentally sound. This should happen well before there is a sudden and unexpected health concern. It is also vital to have everything put legally in writing well before the parent becomes ill and/or dies with the parent’s clear instructions.” Parents can also prepare these documents in advance with the assistance of legal counsel. There is no time like the present to get these important legal matters in order.
Our discussions led to the key components of POA. Ms. Brent said: “I believe the most important components a family member should have while taking on this responsibility is love, loyalty and commitment in the care of an aging parent.”
She added that when selecting a person to handle the POA, the choice should be based on very specific qualifications such as:
- Having a complete understanding of healthcare needs as well as the ever-increasing cost of such healthcare.
- Good money management skills, including excellent record-keeping (health care records, financial records, etc).
- Good credit rating.
- Free of any greed or desire for personal gain.
There ought to be a law for evaluating POA, just as there are assessments of a worker claiming injuries for workers’ compensation. Every person applying for the status of an appointed legal representative should be required to meet with a Qualified Medical Examiner (QME) for psychological and medical assessment. In addition, healthcare facilities and providers should be well informed about the status of POA. These medical professionals should be looking for tell-tale signs of elder abuse. If this is suspected, the medical professional should report these abuses to the district attorney’s office in their state. Investigating a POA is never a bad thing when someone’s life is on the line. This is why there is a need for more advocates to protect the rights of seniors against the abuse of POA including hospitals and hospice care.
POA and Adult Protective Services are designed to protect seniors, but there is a serious deficiency in this area. According to Ms. Brent, “As baby boomers age there will be a growing need for more watchdog organizations to protect their rights.” In my opinion, APS currently falls short of this need; it is tied up in too much bureaucracy. Many family members seeking POA file false claims with APS to discredit the caregiver. If a complaint is found to be unsubstantiated or untrue, the individual filing the false claim should be prosecuted or fined.
Finally, a POA should undergo extensive background checks as well as psychological and medical assessments. It is that serious, according to Ms. Brent:
“My father was a decorated veteran who earned a Purple Heart in Korea. This entitles him to veteran’s disability benefits. Once my father’s medical needs increased beyond the scope of my abilities, I placed him in a private care facility. The monthly expenses continued to increase as his medical needs increased. Only through a combination of Social Security benefits, Veteran’s Administration (VA) benefits, and paying cash out of pocket did I manage to pay for his care. Conflicts arose when it reached the point where my siblings thought our father was dying. Then, all of a sudden, they wanted to be involved and took me to court. A family member placed a restraining order against me by making false allegations that our father was dying because of how I cared for him when he lived in my household. My other siblings, who never helped out with our father, got on board with her. At one point he took a fall while out jogging, and this led him to develop hydrocephalous, a condition commonly known as ‘water on the brain,’ which played a role in the dementia he experiences. After being dragged through courts in several jurisdictions, including a probate court, our father was ultimately taken from my care and placed on welfare to cover his medical expenses. Since then, I’ve watched from afar as Dad’s condition worsens. I am angry and sad, and I am also concerned because it is the quality of his end of life that is at stake—and because it really did not have to be this way. Had I had the knowledge then I have now, this would have never happened.”
Don’t let others decide for you later. Protect your rights. Make the decisions today that you want to be in effect tomorrow. Tackle the scary side of POA.