By H. Kennard Bennett
Any elder law attorney worth her salt will include a General Durable Power of Attorney as part of her general estate planning advice to competent elders. We tell the client that the POA is a way for them to name the person they want as their agent, and that if they have one in place a guardianship will not be necessary if/when they become incompetent.
All of which is true. I have a Power of Attorney myself, thank you very much.
What’s always been troubling to me, though, is that Powers of Attorney can be abused and oftentimes no one’s the wiser. There’s no POA Police out there to make sure the agents are not misusing their principals’ funds. Certainly, court-appointed guardians can abuse their trust as well, but at least there’s someone (the court) that is policing (in theory) the guardian’s activities, and there’s usually a surety bond in place to protect the protected person from the guardian’s illegal acts.
I tell prospective POA agents that the document gives them the power over the principal’s money, but it doesn’t give them the right to the money. Just like a bank has power over the money in your bank account doesn’t mean that it can go in and withdraw money for their own uses.
So, yes, POAs are good things. But sometimes there’s benefit to a guardianship just to have some form of oversight.
Don’t you wish there was a perfect solution to these conundrums?