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NYC Elder Abuse Center - Durable Power of Attorney - Don't Overlook the Oversight

Below is an excerpt of a guest blog post written by attorney A. Frank Johns and writer William Henry for the NYC Elder Abuse Center. Read the full article here. By A. Frank Johns and William Henry

In this blog, Mr. Henry and Mr. Johns describe a durable power of attorney as an alternative to guardianship or conservatorship for older adults and point to warning signs that professionals, family members and older adults can look for in an effort to prevent or detect exploitation.

Granting authority under a durable power of attorney (DPOA) to an elder’s trusted family member or friend can be a far better alternative than judicial intervention in the form of guardianship or conservatorship. However, it is important to have proper oversight as a part of the DPOA. It is when such oversight is lacking that the DPOA has earned a reputation as a “license to steal.”

Most DPOAs created by elders appoint a family member as the attorney-in-fact (agent). Because an elder sometimes is more trusting of the family member, the elder often waives the statutory requirements that the agent provide inventories and accountings of assets to the proper judicial authorities, or someone other than the agent — possibly a spouse, child, close friend or relative, attorney, accountant or to the elder himself/herself.

Consumer groups, professionals of all kinds, and online document providers should warn elders that such oversight requirements protect the elder (the principal) against theft or fraud — even when the risk to the elder seems remote. It should be explained that, although there is some work involved by the agent, protection of the elder’s assets outweighs other considerations. Furthermore, elders should be taught about warning signs that indicate a situation where a family member serving as an agent might take advantage of DPOA authority. Situations that may result in warning signs include: conflict among family members, debt problems, addiction and chronic unemployment.

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