How To Stop A Person From Misusing A Power Of Attorney

By Lane V. Erickson, Idaho Estate Planning Attorney

My job as an estate planning attorney is to look down the road of the future and identify all the worst things that can happen to a person both while they're alive and after they pass away and then help that person create an estate plan that will protect them, their family and their loved ones from those worst things. The problem is, sometimes the worst things are the family and loved ones themselves.

What I mean by this is that sometimes, the people that we choose to help us as part of our estate plan end up being our biggest problems. This isn’t always the case but sometimes it can be, especially while we are alive.

A basic estate plan includes a last will and testament, a durable power of attorney, a living will, and a power of attorney for healthcare. Each of these documents is designed to perform a specific function as part of your estate plan. However, while you are alive, the durable power of attorney is perhaps your most important document.

The durable power of attorney gives you the ability to name someone who will take care of your money and property if you are unable to do it yourself. Without the durable power of attorney, your family would be forced to do a guardianship hearing for a person to be named to take care of these things for you. The problem with the guardianship hearing is that it can be very expensive, and it opens the door for your family to disagree about who would be the best person to be appointed to help you.

There is no question that the durable power of attorney is an important part of every estate plan. However, it’s not invulnerable. In other words, it can be the cause of additional problems later if the person you appoint abuses the power that’s given to them. The good news is, there are some things you can do to make sure that the power of attorney works the way you need it to work and is not abused.

The purpose of this article is to discuss just a few of the ways that you could do this. Keep in mind, this article is just a summary. If you have questions or concerns, we encourage you to contact us for a free 30 minute consultation where we can answer your questions and help you make good estate planning decisions.

The very best thing you can do to make sure that your plan actually happens, is to prevent problems from happening in the first place. You can do this by making sure the person you choose is trustworthy and will accomplish what you want. This may mean that you choose someone other than your own family to help you. If you do not have someone in your family you can trust implicitly, then you shouldn’t use them to do these things for you.

Alternatively, you may use your family members, even if you believe you cannot trust them, by making the situation more difficult for your family member to abuse the power you have given to them. You can do this by putting successors in place who can keep an eye on the person who is acting as your power of attorney.

Some people also choose to name co-powers of attorney. We don’t recommend this because if you have it this way it usually requires everyone to be in agreement on what needs to be done. If those you have chosen cannot agree on what needs to be done it can usually only be resolved through legal proceedings.

Another option is to require the person you have chosen to make a report to some independent third-party like your accountant, or your attorney, or some other family member. Again, this action may be unnecessary if the person you have chosen is trustworthy and will do what you have asked them to do.

Additionally, if you believe that a family member is being taken advantage of through a power of attorney, you have the ability to contact the Idaho adult protective services. Each area of the state has its own office where reports can be made that will then be investigated. The adult protective services are particularly good at investigating any financial exploitation that may be occurring.

This is important because the power of attorney is a global power. It gives the person it is granted to the ability to handle your money and finances the same way you would if you were capable of doing it yourself. In other words, this person will have their hands on your checkbook and wallet it just about every way possible.

If an investigation shows that the individual you have given the power of attorney to is not using the money for your benefit, then they will be removed from this power and criminal charges could be brought.

Finally, if you believe that a family member is being abused through a power of attorney, you have the ability to bring legal action to stop that from happening. We encourage you to contact a good estate planning attorney who understands how a power of attorney works, and who can immediately file legal action to stop abuse from occurring.

So, as you can see, there are ways that you can stop the misuse of a power of attorney. If you do have questions or concerns about a particular situation in your own family, or if you would like more information about how to set up your own estate plan, we encourage you to contact us for a free 30 minute consultation. We have helped numerous clients with their estate plan, we are confident that we can help you too!

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.