Lawyers urge regulation of power of attorney
Lack of standard forms, oversight leads to exploitation of elderly
Thursday, February 9, 2012
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If someone wants to change their name, they have to file a petition in court to do so. But the same person could hand over authority over their finances, known as power of attorney, to someone else without court approval.
Lack of state regulation over power of attorney can hamper efforts to prevent and stop financial exploitation of elders and other vulnerable adults, according to Clark County law experts. Additionally, there are no state-approved standard power-of-attorney forms to serve as a safeguard against exploitation.
“Literally, what you are doing (when you give power of attorney) is saying, ‘Here is the key to my kingdom. Please, take care of,’” said Vancouver attorney Jessica Dimitrov. “Power of attorney is the No. 1 tool for financial exploitation.”
A power of attorney is commonly used to allow another person to make financial or health decisions on one’s behalf. The contract may be written to take effect immediately or when a specified number of medical professionals declares one to be incompetent.
Financial exploitation is the most common kind of elder abuse handled by Adult Protective Services in Clark County, said Samantha Petshow, an Adult Protective Services supervisor in Vancouver. In 2011, there were 316 reports in the county of financial exploitation of vulnerable adults, Petshow said.
“It is a huge problem, and it’s growing,” Dimitrov said.
The majority of financial exploitation is committed by a close relative or friend, Dimitrov said. The close relationship to the perpetrator may make some victims uncooperative during an investigation or prosecution. The victims may be in denial, not want to turn in a relative, feel trapped, fear the alternative or be embarrassed because they feel the exploitation was their fault.
Power of attorney is the easiest way to exploit a vulnerable adult because the process is unregulated and largely a mystery to people outside of the two people bound by the contract, Dimitrov said.
Lack of regulation
A poorly conceived power of attorney form can open the door to exploitation, Dimitrov said. Unlike about a dozen other states, there is no standard power-of-attorney form in Washington that residents can depend on to include provisions to safeguard their interests.
The Chicago-based Uniform Law Commission offers a standard form providing a set of default rules and protections. The legislatures of Maine, Virginia, Ohio, Wisconsin, Arizona, Alabama, Arkansas, New Mexico, Colorado, Montana, Idaho and Nevada have adopted that form, according to the commission’s website. West Virginia has introduced legislation to do the same. Dimitrov said she would like to see Washington follow suit.
Power-of-attorney forms in Washington are as varied as DNA, Dimitrov said. Many forms are available on the Internet at no cost but may not include some crucial protections. Without an expert’s advice, one may miss a form’s shortcomings.
The only third party required to sign off on a power-of-attorney contract is a notary whose only responsibility is to verify the identities of the two people who are signing a power-of-attorney contract. That means there’s almost no oversight.
“It’s a private deal between two people,” Dimitrov said. “Family members can’t even get a copy of it (except from the two people who signed the contract) unless they file a court case.”
“That’s why they’re so insidious,” she said.
Vancouver attorney Jill Huebschman Sasser said she has seen cases in which a notary conspired with the person seeking power of attorney and notarized a contract without a vulnerable adult’s consent.
The mystery surrounding power of attorney can prevent some people from reporting exploitation because they think the person with the power of attorney is authorized to do as they please.
“There are broad ones that say this person can do anything they want,” Dimitrov said. “People think, ‘He bought a red Lexus; the power of attorney says he can do it.’ That may not be true. If you have given authority to make gifts, especially to one’s self, that has to be set forth in there.” If the trustee of the finances buys a Lexus, and gifting isn’t permissible, that person could be convicted of a crime such as theft, she said.
“It’s OK if you are paid (as dictated by the power of attorney form),” Dimitrov said. “The problem is when you start writing yourself checks.”
In one case, an 85-year-old woman’s son convinced her to sign a power of attorney after Adult Protective Services was called because she was neglecting herself, Dimitrov said. The son moved his mom into a long-term care facility and used her $80,000 in savings to fix up her house under the pretense of selling it, Dimitrov said. He wrote checks to himself, his son and his son’s girlfriend with the guise of payment for work on the house.
“The mom qualified for Medicaid (to pay for her stay in the care facility) so the taxpayers are paying for her stay,” Dimitrov said.
Law enforcement depends on the public to report financial exploitation, and anyone with a suspicion is encouraged to do so, said Vancouver attorney Jim Senescu.
Any member of the public who suspects abuse, exploitation or neglect of a vulnerable adult can file for an emergency vulnerable adult protection order, Senescu said.
When in doubt, report suspicions to Adult Protective Services at 1-877-734-6277 or call 911.
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