Decision-Making With Your Older Loved One: Choosing a Power of Attorney Agent

Establishing a Durable Power of Attorney for Health Care or Finances can give loved ones the ability to control who makes important health care or financial decisions for them if their physician declares they are no longer able to make these decisions for themselves. Having a Power of Attorney is important because it assures loved ones have someone who can act on their behalf and, ideally, respect their wishes.

However, with this power comes responsibility, and sometimes this responsibility can be abused by those who do not have our loved ones’ best interests at heart. Before choosing a Power of Attorney agent, loved ones should not only make sure the person they are considering is someone they can comfortably express their wishes and preferences to, but also that the agent is trustworthy enough to make be involved in the decision-making process.

To help a loved one choose a Power of Attorney agent, we can start by thinking of someone who is:

• Willing to speak on their behalf and comfortable making decisions for them
• Willing to act on the loved one's wishes, rather than his or her own wishes or feelings
• Able to travel to be with the loved one at short notice
• Able to handle conflicting opinions between family members, friends and medical personnel
• A strong advocate who is able to be firm with medical personnel or institutions when necessary
• Knowledgeable of the loved one's condition and medical history if he or she is taking on the role of a health care agent
• Knowledgeable of the loved one's estate and assets if he or she is taking on the role of a financial agent

On the other hand, a Power of Attorney should not be:

• A professional health care provider, such as an owner, operator or employee of a health, residential or community care facility serving the loved one
• A spouse or close relative of the loved one's health care providers
• Someone serving as an agent for 10 or more people

When creating a Power of Attorney for Finances, a loved one may be concerned in particular about the possibility of their funds being misused, or of their agent changing important financial information such as beneficiaries or recipients of charitable donations. To safeguard a loved one's finances, we can encourage them to:

• Avoid appointing an agent who has a history with substance abuse, gambling, debt or mismanagement of money
• Avoid appointing someone they are hiring or someone who may have a financial conflict of interest with them
• Tell other family members or friends who they are appointing as an agent so others can monitor the agent’s actions and behavior
• Revoke or reassign Power of Attorney if they have concerns about the agent. However, we should be aware that a loved one must be declared mentally capable of making decisions by their primary care physician before they can revoke or reassign an agent

If a loved one is declared mentally unfit, removing an agent who is abusing their authority may be left to us or other close relatives. To report Power of Attorney abuse, we can:

• Make a report through Adult Protective Services. We can use the National Adult Protective Services Association’s locator to find services in our area.
• Call the local police department
• Call our county’s Prosecutor’s Office

If a court finds evidence of the agent acting outside the authority of Power of Attorney, or contrary to an older loved one's interests, there are several options they may take, depending on the seriousness of the agent’s offense, including:

• Compelling the agent to properly comply with the Power of Attorney and increasing the amount of times he or she is required to report to the court
• Removing the authority of the agent and appointing a replacement
• Ordering the amount of funds that were used improperly to be repaid