Friday, December 14, 2007

Power Of Attorney - A Theft License

AN OAKLAND WOMAN steals $200,000 from her sick 73-year-old mother's bank account.

An East Palo Alto woman is accused of taking out a $200,000 loan on her disabled 92-year-old grandmother's house without her permission

A Stockton woman is hired to take care of a 92-year-old former elementary school principal. She steals more than $100,000 from the elderly woman

All of these cases have one thing in common: The weapon used to commit the crime, or alleged crime, was a perfectly legal document called a power of attorney.

Any scoundrel can coerce an easily influenced elderly person into signing a power of attorney.
Once this powerful document is in hand, the abuser is off to the races. A power of attorney is the key to the treasure chest.

The law also says that the agent, also known as the attorney-in-fact, must act in the other person's best interest. That he or she cannot make gifts to himself of the principal's property - unless the power of attorney specifically states otherwise. There must also be no comingling of funds.

(It's been our experience that authorities in Florida are not interested in enforcing F.S. 709.8 and in other states no one's checking to see if people are obeying that part of the law.
Usually, by the time unscrupulous individuals get caught ripping off elders, the damage has been done.)

A power of attorney, unless it states that it is limited in scope, is a blank check. Agents are free to use defenseless elders' hard-earning savings as their own personal piggy banks.

We believe power of attorneys need to be limited to certain functions. There also must be mechanisms for holding agents accountable. Finally, there must be enforceable penalties when an agent violates someone's ultimate trust.

We need legislation that will help those who truly have elders' best interests at heart, but that will limit the amount of potential damage from predators.

A wrongly used power of attorney is a license to steal. It's time the Legislature revoked that license.

Abridged from the ContraCosta Times=>>

I too am wondering why, if there are so many laws in place to protect our elders, in regards to how guardianship's are chosen, and constructive notices served, how guardians are to step down and be replaced?

And what about those laws governing how 'Power of Attorneys' are to be used? And laws stipulating how the Baker Act is to be used?

This web site and others are full of examples how useless these laws really are because of the manner in which they are not being enforced.

What's the point campaigning Congress for more laws, if the ones in place are scantily enforced or not enforced at all?

Some of us feel like "pushing for new laws is a wasting of precious time".

Maybe our efforts should be directed at "Judicial Accountability", and that laws should be enforced equally across the board for everyone.

Why try to build a case and enforce a law against "Elder Theft" of a caregiver, especially if a relative of the caregiver has done the same thing and yet it is called a 'misunderstanding' or 'sibling rivalry'?

Where is the consistency?

Until our Judicial System starts to take Elder Abuse and Elder Financial Abuse more seriously and hands out appropriate sentences, more laws installed means more laws to be broken and more frustrated victims and families.

5 comments:

Mike Sars said...

Surprised? Why? We have known for more than 50 years that NOBODY is teaching values to children, not their parents that are much too busy trying to earn a living, not schools who consider the teaching of values, even the value of Truth and Honesty, totally outside their teaching duties, I was told by experts, and few go to churches that teach their core beliefs.
The primary teachers of values are no longer Christians but Islam, Communists and Nazi, in historical order. Guess what? They all began with indoctrinating children. What does that mean?
What can we do about it? Is anyone willing to give up their freedom of choice, at least with respect to "Thou Shalt Not Steal" from you Grandparents and parents, aunts and uncles? How about GrandAunts, Grand Uncles and your community?

There was a tribe in the Amozon Region that approved on stealing from other tribes but not stealing from your own tribe. I guess, in this sense, we are not as advanced as they were (they went exctinct).
Can we really enforce Honesty on everyone? Should we put a policeman behind everyone? What would happen to privacy and responsibility when Big Brother is always watching you on TV to make sure you don't steal from your Grandma?

Posted by: Nettesheim & Nettesheim said...

The article raises an issue that I see in my practice every day. I represent elders and their families in situtations just like this one... they've been ripped off by someone they trusted, a family member, an attorney, an accountant a financial advisor, etc. Powers of attorney are, on the one hand, necessary to allow elders to make sure their financial affairs (and healthcare) can be taken care of even when they are too ill to do it themselves, but, as the article states, they also serve to unlock the door for the thief. Powers of attorney (POA) are inexpensive, and that's one of their benefits. Without them, families or elders would have to hire lawyers, pay institutional trustees (usually banks), or turn their affairs over to an already overburdened court system to have their private affairs handled in public. A POA in the hands of a good, honest person, is an excellent tool. But, what can the legislature do to protect against the dishonest people with a POA? One idea might be to require recording of the document and a bond or insurance policy. However, if that were done, while insurance companies might be happy for the extra business, and it might protect the elders who buy it, many might simply do without due to the extra cost, which gets us back to the first problem for which POAs were created in the first place. Another idea might be to require accountings by the POA to the family members on a regular basis. Again, this would drive up the cost. Perhaps these requirements could be put in place only where assets exceeded a set number, say $100,000 or $500,000... There are just some thoughts regarding a difficult problem. I'd like to thank the author, however, for raising the issue and getting people thinking and talking about it.

Christoph T. Nettesheim, Esq.
Ventura, CA

They all bear some responsibility said...

I'd love to know what Ms. Sanders 6 siblings were doing while she was taking(!) care of mom. Where was their outrage when mom needed somewhere to go? If her care had been divvied up among all of them, or at least 3 of them, there would be a system of checks and balances in place that would have prevented this. Yeah, the daughter should be punished for what she did, but the other family members should have been helping with mom's care from the beginning. They may throw pebbles at their sister, but no stones.

Ray said...

(It's been our experience that authorities in Florida are not interested in enforcing F.S. 709.8 and in other states no one's checking to see if people are obeying that part of the law.
I too am wondering why, if there are so many laws in place to protect our elders, in regards to how guardianship's are chosen, and constructive notices served, how guardians are to step down and be replaced?

And what about those laws governing how 'Power of Attorneys' are to be used? And laws stipulating how the Baker Act is to be used?
ElderAbuseHelp.Org and others are full of examples how useless these laws really are because of the manner in which they are not being enforced.
What's the point campaigning Congress for more laws, if the ones in place are scantily enforced or not enforced at all?
Some of us feel like "pushing for new laws is a wasting of precious time".
Maybe our efforts should be directed at "Judicial Accountability", and that laws should be enforced equally across the board for everyone.
Why try to build a case and enforce a law against "Elder Theft" of a caregiver, especially if a relative of the caregiver has done the same thing and yet it is called a 'misunderstanding' or 'sibling rivalry'?

Where is the consistency?

Until our Judicial System starts to take Elder Abuse and Elder Financial Abuse more seriously and hands out appropriate sentences, more laws installed means more laws to be broken and more frustrated victims and families.

Ray said...

(It's been our experience that authorities in Florida are not interested in enforcing F.S. 709.8 and in other states no one's checking to see if people are obeying that part of the law.
I too am wondering why, if there are so many laws in place to protect our elders, in regards to how guardianship's are chosen, and constructive notices served, how guardians are to step down and be replaced?

And what about those laws governing how 'Power of Attorneys' are to be used? And laws stipulating how the Baker Act is to be used?
ElderAbuseHelp.Org and others are full of examples how useless these laws really are because of the manner in which they are not being enforced.
What's the point campaigning Congress for more laws, if the ones in place are scantily enforced or not enforced at all?
Some of us feel like "pushing for new laws is a wasting of precious time".
Maybe our efforts should be directed at "Judicial Accountability", and that laws should be enforced equally across the board for everyone.
Why try to build a case and enforce a law against "Elder Theft" of a caregiver, especially if a relative of the caregiver has done the same thing and yet it is called a 'misunderstanding' or 'sibling rivalry'?

Where is the consistency?

Until our Judicial System starts to take Elder Abuse and Elder Financial Abuse more seriously and hands out appropriate sentences, more laws installed means more laws to be broken and more frustrated victims and families.