Maryland Bar
Bulletin
Publications :
Bar Bulletin
Editor: W. Patrick Tandy
April, 2004
| |
Powers of Attorney:
Not Just A Form |
| By
Jennifer Goldberg |
Mrs. C has just
walked into your office, shepherded by her daughter.
Immediately, the
daughter starts talking. She describes her mother’s health problems and
explains that she is already writing Mrs. C’s checks for her.
Mrs. C sits there,
not saying a word. The daughter says they’ve heard it’s easy to get a
power of attorney; it’s just a form that an attorney can fill out. She
asks whether you can write one up for them today. What is wrong with this
story?
A power of attorney
is much more than a boilerplate form. The document places immense power
and enormous responsibility in the hands of an agent. It is not a question
of just checking off boxes on a form. When you draft a power of attorney,
it is an opportunity for you to act truly as “counselor-at-law.”
Who
is the Client?
The first step is
to ask yourself, who is the client? In elder law cases, the client may not
be the person who calls your office, makes an appointment to see you and
pays your bill. No matter who performs these tasks, the client is the
senior, the person who is granting the power of attorney.
What does this mean
for your representation? First, you must speak to your client
individually, without family members or other involved parties present. By
interviewing Mrs. C on her own, you can ensure that the client is acting
voluntarily and is not being subjected to undue influence. This private
conversation allows you to evaluate whether the client is competent and
therefore capable of granting a power of attorney. Does she know what she
is doing, what she owns, who will be handling her affairs? If you have any
concerns, you will need to investigate the client’s competence further.
Individual client
meetings also protect client confidentiality. Family members may resist
leaving the room when you talk to the client, and your client may want a
family member to remain. By explaining why you need to speak to the client
individually, you can help them realize that meeting with the elder alone
is the best way to protect her.
Crafting a Document that Meets Your Client’s Needs
Not all powers of
attorney are or should be the same. The powers granted under Md. Code Ann.
Est. and Trusts § 13-601 can be sweeping in scope or limited to a single
transaction. How broad or narrow a power of attorney will be depends on
many factors, including the client’s financial circumstances, health
needs, family availability or ability to function independently.
Finding out why a
client wants a power of attorney is critical to drafting a document that
meets her needs. As you clarify the client’s wishes, consider whether a
power of attorney is the best instrument to accomplish her goals. Think
about any particular powers that should be specified. For example, Mrs. C
may want to enter into a HUD-funded reverse mortgage, a power that should
be specifically granted in a power of attorney. Powers of attorney, no
matter how well drafted, may not anticipate all situations. Through
careful interviewing, you can discover whether there are underlying legal
problems to be addressed now, such as a pending foreclosure. Also,
consider whether any other forms should be filled out when you create the
power of attorney. For example, some banks may try to insist on using
their own power of attorney forms.
Keeping the Wolves at Bay: Avoiding Financial Exploitation
If misused, powers
of attorney can make a senior financially vulnerable. There are steps that
you as an attorney for the elder can take, however, to stop or prevent
financial exploitation of your clients:
- Identify
all actual and potential conflicts of interest. Never assume that family
members are acting in accordance with the client’s wishes or best
interest.
- Make sure all
documents are properly executed to protect against any future challenges
to this document. You never know how family members will react when
money seems to be available.
- Advise your
client about the risks associated with a power of attorney. Have the
client consider carefully who should act as her agent and when the power
of attorney should take effect.
- Finally, talk to
the agent directly. Focus on the agent’s legal obligation to act in the
client’s interest, not his or her own interest, and tell the agent the
ramifications of squandering the client’s trust. Strike fear in the
agent’s heart, play on his or her guilt; however you do it, make sure
the agent understands the huge responsibility he or she has undertaken.
Powers of attorney
are invaluable to help seniors manage their affairs, now and into the
future. Through counseling your client and careful drafting of the
document, you can ensure that your client’s interests are protected.
Jennifer Goldberg is a staff attorney for the Montgomery County Legal
Services for Seniors of the Legal Aid Bureau, Inc.
