When we hear stories of the abuse of power of attorney document, we’re often amazed at the gall and boldness that accompany the actions of the attorney in fact (the person who is appointed on the power of attorney document). One of the main reasons that Aunt Gertrude chose her niece Milly (our two fictitious characters for purposes of this blog) as her attorney in fact was that she trusts Milly to do the right thing.
An attorney in fact has a duty of loyalty to the person who appointed her (the principal). So Milly owes a duty of loyalty to her Aunt Gertrude. Milly’s actions have to be in favor of and for the benefit of Aunt Gertrude. In fact, most power of attorney documents include an “agent’s acknowledgement” which the agent must sign. It affirms, among other things, that the agents actions will always be for the benefit of the principal (i.e., that Milly’s actions will always be for the benefit of Aunt Gertrude.
So if Milly had not seen her Aunt Gertrude for seven years (but was still listed on her aunt’s power of attorney document) and then changed the beneficiary of Aunt Gertrude’s annuity from what it was to herself, that would not be in her Aunt’s best interest. In fact, it would be self dealing by Milly.
Milly should not take such actions. Milly has to keep Aunt Gertrude’s interest above her own. We have seen this exact scenario play out. It’s sad. People take advantage of the weakest among us. Be vigilant. Help the seniors in your life. Please don’t stand idly by and watch while Milly robs Aunt Gertrude blind!
Help. My 85 year old Dad is not allowed to talk to anyone my POA sister doesnt allow. He wants to come to Missouri, but now that Mom just died, my sister, is keeping him from being able to leave or let us talk to him or visit.
First, I am writing to you separately to speak to your issue specifically.
I want to take this opportunity to respond, generally, with steps anyone can take when a person who is the attorney in fact, often referred to as “a power of attorney,” oversteps their boundaries.
First, confront the person, preferably with more than one family member or friend accompanying you. This is best done in person and not by email or over the phone. Ask the attorey in fact the obvious questions. Make him give you the reasons he is not allowing any contact with ‘outsiders.’ Often, the very fact that they are being confronted is enough for them to give up and ‘play the victim’ themselves. That’s fine. You have broken the log jam.
Next, ask to see the power of attorney document which appoints her as your father’s attorney in fact. You will see in that document language which requires her to act in your dad’s best interest. Make the attorney in fact read it to you — out loud — and in the presence of your father if at all possible.
If you are saying “My sister won’t allow anything of the kind,” then go to your local office of aging and ask for their help. Stories which are similar to this are being played out all over your community and my community. They will know a little more of what to do and will also know who can assist you, should more assistance be required.
Finally, hire an attorney to push the issue with your sister, if necessary. An attorney who is familiar with Power of Attorney abuse cases will be able to move the conversation towards your father’s best interest. And will assist you in liberating him from his situation, should that be what is in his best interest.
Keep the seniors around you in your sights, and in your prayers. Our seasoned citizens need our diligence to help protect them.
Mark A. Mateya, Esq.