Anyone appointed under a durable power of attorney (DPOA) to act as someone’s attorney-in-fact (AIF) needs to read the document — carefully. You might think that this is obvious, but it doesn’t happen nearly as much as it should. Failure to read and understand the document is not a good excuse if you, as the AIF, should get sued by some very unhappy relative or Elder Protective Services complains that your failure to follow instructions hurt your mom.
One of the biggest traps for the AIF is power—or lack thereof—to make gifts, either to others or to the AIF herself. As a matter of law, if the DPOA does not expressly say you can make a gift, you can’t make it. If it puts limits on who can receive a gift or on the amount to be given away, then those limits must be honored. If the DPOA says you can only make gifts of equal amounts to all of the children, then you can’t favor one child over another. And if it doesn’t say that you can make a gift to yourself from your mom’s funds, then doing so is unlawful self-dealing.
So, what happens if you ignore the instructions in the DPOA? If you’re lucky, your mom (if competent) will fire you. Or you can get sued. A judge can force you to give up your position. And you could be ordered to repay your mom the money you wrongly gave away from your own funds.
If you are the AIF, you should not hesitate to consult with an estate planning or elder law attorney to review what the DPOA authorizes you to do.
I’ve had clients who should not have been driving due to clear signs of dementia, substantially diminished mobility, or obviously impaired visual-spatial skills. Frankly, the idea of being on the road with As their attorney, I can suggest that they consider the liability they face if they cause an accident, but I cannot ethically rat them out without breaching the attorney-client relationship. I can only pray that their kids step up and intervene.
Probably one of the toughest conversations adult children have with their parents is about when to stop driving.It’s important for adult children who hold powers of attorney for their parents to know that they are not legally responsible for any accidents or injuries which may occur as a result of their parents’ impaired driving. However, that fact does not compensate for the pain and guilt felt if a parent who should not be driving injures another person or themselves.
Telling all this to a parent who is already frightened of losing independence and dignity and may be in denial about the degree of impairment may be difficult and possibly unproductive. You need to be a compassionate and patient listener. You also need to be ready to present transportation alternatives (the social worker at your local Council on Aging can provide information about such services). You may need to have this conversation a number of times before it sinks in. Hartford Insurance has developed an on-line video to coach you about these discussions.
If a direct conversation is not possible, you can file a written request for a medical evaluation with the Registry of Motor Vehicles. The Registry will not tell the elder over the phone who filed the request; however, Massachusetts open records laws require the agency to release the record if the elder asks in writing.
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