53 Pages Posted: 16 Nov 2006 Last revised: 15 Feb 2009
Date Written: 2006
The durable power of attorney (DPOA), one of the nation's most ubiquitous and powerful legal documents, is a popular planning tool for seniors anticipating a decline in cognitive or physical well-being. By executing a DPOA, seniors can grant an agent (typically an adult child) broad authority to engage in financial transactions on their behalf.
While DPOAs are touted as a way for seniors to enhance their autonomy, the author argues that they often have the opposite effect. Under most states' statutory regimes, agents are given little guidance as to what standard to use to make decisions on behalf of elders, and have no duty to communicate or consult with elders. As a result, agents are prone to "over-reach" their traditional fiduciary duties and make decisions that are inconsistent with elders' values and wishes. In most states, for example, an agent who felt her mother would be safer living in a nursing home could force an unwanted move by using the DPOA to sell the mother's house without so much as notifying her.
The author argues that permitting agents to act without communicating and consulting with elders is inconsistent with agents' underlying legal duty of obedience. Drawing on literature from the fields of psychology and sociology, the author shows that permitting such actions can also be expected to fundamentally alter family power structures, to the detriment of elders' well-being. The author therefore proposes that states explicitly require agents to communicate with those on whose behalf they act and to provide advance notification of certain "fundamental" transactions. This novel, yet simple, mechanism would empower elders to better monitor their agents and bring DPOAs a step closer to fulfilling their promise as autonomy-enhancing devices.
Keywords: power of attorney, elders, aging, empowerment, law
JEL Classification: K39
Suggested Citation: Suggested Citation
Kohn, Nina A., Elder Empowerment as a Strategy for Curbing the Hidden Abuses of Durable Powers of Attorney (2006). Rutgers Law Review, Vol. 59, p. 1, 2006. Available at SSRN: https://ssrn.com/abstract=944622
By Terry Carney
By Gerry Beyer