Too Much Power in a Power of Attorney: Challenges and Issues for the Elderly

By Kristel Tupja, Elder Law Clinic Student, Fall 2015

“Children can really hurt you sometimes.” I can feel the sadness and emotion emanating from our potential Clinic client.  The woman reached out to us to discuss the contents of a Power of Attorney she granted to her son.  Spiraling into depression after simultaneously losing her job, her house and filing for bankruptcy, the woman saw it best to grant her son Power of Attorney to help her during this trying time.  But help soon turned into harm, as her son began threatening his mother that he would march to her bank and withdraw the money on her behalf.

Rising above her turmoil, our potential client decided to take charge of her life once more.  She asked us to make sure the Power of Attorney was still in her best interest.  What rights had she granted to her son?  Can he really march to the bank now that she is better and take out money on her behalf?  She needed him to help her with her finances when she was in dark place, but her recovery prompted her to become quite diligent with her finances.  Can the son still maintain this Power of Attorney?

The potential client had granted her son the power to do virtually anything and now was conflicted; her relationship with her son was already strained but she feared that it could get worse if he found out that she wanted to revise or revoke her Power of Attorney. The important fact in these kinds of cases is that a Power of Attorney should be granted to someone you can really trust.  Nonetheless, when drafting a Power of Attorney, it is best to be thorough and cognizant of what powers you are granting away, regardless of who you are granting them to.  Further, drafting a “Springing Power of Attorney” that is only valid during times of incapacitation could avoid situations like these.

What I have gathered from the Clinic experience is that the answers are not always black and white.  There isn’t always a clear solution to a situation as sensitive as a contract with someone you love and have cared for throughout your entire life.  In an effort to help clients like this one, the student attorneys work together to come up with different options, all the while keeping the client’s best interests in mind.  The answers might not always be the easiest to understand or come to terms with.  Oftentimes, we are called to think as counselors and attorneys at the same time.  But what ultimately matters, above all, is that the client is presented with the options that will allow him or her to make a decision that is in their best interest.