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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

previous

next

Publications : Bar Bulletin: April, 2004

Back to top