Powers of attorney are powerful tools, ones that can be easily misused. We’re often warned that bad things can happen with a financial power: the agent can take all the money. But we’re not often told bad things can happen with medical powers, too. This week, we share a cautionary tale inspired by a client (we’ll call her Sally–not her real name) and the bad things that happened with her health care “poa.”
In the Beginning, All Seemed Fine
A couple of years ago, at daughter Sue’s urging, Sally signed powers of attorney. She named Sue first, followed by daughter Megan, to make decisions for her if she at some point isn’t able to do so. In legal terms, Sally, as the person signing, is the “principal.” Daughter Sue will be the “agent,” and Meghan, the alternate. These documents typically come in pairs, financial and medical. Sally signed both. With a financial power, the powers granted to the agent can take effect right away or spring into action upon the principal’s incapacity; Sally’s was the latter. Every health care power becomes effective only when the principal is unable to make or communicate medical decisions.
A snowbird, Sally winters in Tucson and summers in Michigan, where she has extended family, and owns a business, a residence, and a lake house. In the fall, a health scare sent Sally to the hospital for a few weeks. Daughter Sue came to visit for a few days, then returned to Michigan to run the business. Sally was grateful for the support. A rehabilitation facility was next, which didn’t surprise Sally; many of her friends had gone through a similar process.
Bad Things Start to Happen
Sally expected to go back to her Tucson apartment afterward. But Sue, from Michigan, explained that, as health care agent, she had decided Sally wasn’t yet fully recovered. Sue convinced Sally to go to another facility. Sue chose one far away from Sally’s Tucson friends, and they couldn’t visit. Sally noticed many of the residents could barely speak or could not remember things from one moment to the next. The doors were locked and Sally could not leave without approval. She learned she was in a locked memory care unit. Sue said she had dementia and was unable to take care of herself. Sally didn’t think that was true but wasn’t entirely sure; after all, after months in a facility, she had lost track of the day of the week and she couldn’t remember the last time she talked to Sue.
When the weather got warmer, Sally was sure it was time to return to Michigan. She called Sue and asked about the trip. Sue bluntly told her: “I’m in charge now, Mother. You will never return to Michigan.”
Efforts to Help Are Blocked
Horrified, Sally called Megan and asked for help. Megan called the facility, and the director said yes, Sue, as “poa,” was in charge. She could force Sally to stay there. If Sally wanted to leave, she needed a new power of attorney. She started calling lawyers. Sally obtained an appointment and explained what she had been through and that she wanted Megan to be her agent so she could go home. The attorney wanted to meet in person and arranged a time, clearing the plan with two directors at the facility to ensure safety, given Covid-19 restrictions. The morning of the meeting, Sally’s attorney received a message: Sue found out about the meeting and canceled it — and all other visitors. Sally was trapped.
The lawyer asked Sue for proof Sally was unable to make her own decisions. Sue refused. Sue hired an attorney, who also refused to provide any medical proof of Sue’s authority. Sally’s attorney filed a lawsuit under A.R.S. § 36-3206. The little-known statute lets you challenge a health-care agent’s decisions. The statute is designed for a resolution in about 5 days. But in this case, bad things kept happening. The proceeding was delayed, and the judge ordered Sally to stay in the facility until there was a resolution. Sally met with her own neurologist, who reported Sally was not impaired. That was not enough. Sue’s attorney insisted on another evaluation, and the judge agreed. The second medical expert agreed: Sally was able to make her own decisions.
More than 30 days after the formal legal dispute began, the judge said Sally could leave the facility and go home to Michigan. She also could choose to remove Sue from her Will. It’s the right result, but Sally spent months confined to a facility against her will and spent thousands of dollars in legal fees to fight her own child. The family will never be the same.
What can we learn from this?
If you are Sally, the principal:
- The most important take away is NOT to avoid signing a power of attorney. Instead, be very, very careful whom you name as agent. Does your child enjoy control? Be wary. Is there conflict among your children? Be wary. Has a rift with the child healed? Don’t be so sure, be wary. Consider naming co-agents so no one person has all of the power. Or, even better, a neutral licensed fiduciary.
- Make an effort to keep lines of communication open with family members, friends, and professionals such as attorneys and financial advisers. With a broad audience, if something seems strange, someone might notice and help protect you.
- Read and understand your document. Know the requirements to activate the power. Understand what the powers include and don’t include. Know how to revoke it. The State of Arizona has some guidance.
- Don’t believe everything you are told. Know that staff at a care facility, residents at the care facility, or lawyers for the care facility often do not understand legal implications of powers of attorney.
If you are Sue, the agent:
- Read and understand the document. Know the requirements to activate the power. Understand the limits of the power; your powers do not reach beyond those in the document. Living arrangements and visitation are usually NOT health care decisions.
- Get a diagnosis. Make sure a medical professional has determined that the principal is unable to make decisions. Often, health care worker lean on the agent out of convenience, not a determination that the principal is unable to decide.
- Understand your duties. You are charged with carrying out the wishes of the principal – even if you don’t agree. To do that, you must listen to the principal. You may make decisions in her best interest ONLY if you cannot determine her wishes. If the principal insists on making decisions that are not in her best interest, you may need a guardianship to protect her.
- Don’t believe everything you are told. Know that staff at a care facility, residents at the care facility, or lawyers for the care facility often do not understand the legal implications of powers of attorney.
- Understand that bad things can happen. Although it’s not common, parents who have capacity can and do disinherit children who try to control them.