A man I’ll call George hired my friend, a social worker, to visit his “Uncle Milt.” George hoped my friend would persuade Milt, 96, to move from the home he loved on the East Coast to a nursing home in Nebraska near George. Uncle Milt, however, was firmly planted and said so loud and clear.
The social worker found Milt alert and engaging. She gave him a “mini-mental” test that showed minor memory loss but no dementia. Milt’s two long-time health-care aides were present. They kept him clean and well-fed and took him on outings. A neighbor looked in on Milt every evening. Clearly they all shared a deep affection for Milt. He seemed happy.
My friend informed George that Milt could safely remain in his home and recommended he be allowed to do so.
Undeterred, George showed up one day armed with Milt’s powers of attorney. He ordered the aides into another room, and wheeled Milt away, screaming and crying. “Wait!” an aide begged. “Let me at least pack a bag with his clothes and some photos he loves!”
“We’ll buy new ones,” George yelled over his shoulder.
Outside, an alarmed neighbor asked, “What’s going on?”
George answered, “I have his power of attorney! He’s moving out and won’t be back!” And he drove away with Milt.
Milt was competent and had made intelligent arrangements. But control of his own life was ripped away with the misuse of a power of attorney — and at least partly because he was old.
Financial and health care powers of attorney (POAs) are documents naming trusted persons (called “agents”) to carry out our wishes when we can no longer make decisions for ourselves. These documents are meant to protect us, not to abolish our civil rights.
Milt had named George, his only relative, as both his financial and health care agent. George now had the power to place Milt in a nursing home and pay with Milt’s cash. He might even be able to sell Milt’s home without consent. Milt could sue to stop him, but from another state it would be an expensive and uphill climb.
How, then, can you create powers of attorney to help you and protect yourself from improper use?
1. Remember: your agent can legally bind you. Be sure your chosen one understands your wishes and agrees to follow them. Sense any pushback? Choose another. George was Milt’s only living relative, but anyone — a friend, a clergy member, a willing neighbor — can serve.
2. Keep your signed and witnessed POA in a safe place and tell the agent (or someone you trust) where it is, but retain it until you need it.
3. Add limiting language, such as: “This document shall become effective upon the written determination of two doctors that I am not capable of making informed decisions about [my own health care] or [my finances].”
4. You can always revoke a power of attorney or name a new agent. The revocation must be in writing and witnessed. Send copies to everyone who might have received the first one. Had Milt foreseen his nephew’s intentions he could have revoked, even on short notice. Milt’s health aides would not be eligible witnesses, but neighbors and friends would be.
5. Could the witnesses have stopped George? Yes. If you see or suspect elder abuse, ignore the proffered POA and call the police to report an attempted abduction. Then Google your local Adult Protective Services (APS) and call.
6. The police or APS almost certainly would force George to give up or petition for guardianship. Milt could get a lawyer and a restraining order. The social worker, the aides, and Milt’s neighbor could testify to his competence. A judge might appoint an expert to determine Milt’s capacity, but chances are overwhelming that George would return to Nebraska alone, leaving Milt in peace.
A POA does not grant permission to kidnap the grantor. No competent adult should lose the right to make his own life decisions, simply because he is old and trusts the wrong person.