by Kimberly E. O’Leary, Professor Law & Director, Sixty Plus, Inc. Elderlaw Clinic, Western Michigan University Thomas M. Cooley Law School

Many elder law attorneys encourage their clients to sign Durable Powers of Attorney, and my office does too.  Having a DPOA can reduce the chances of an older adult having a guardianship imposed and thus, increase independence longer into life. Your chosen agent can help you without you giving up your own ability to make decisions. The risk to a DPOA, however, can be quite substantial: this is the document that might allow someone to steal all of your money, put you in a nursing home, transfer your home to the agent or other acts which might be dangerous to your well-being, without the automatic court oversight of a guardianship. While you can sue your agent if he or she fails to act in your best interests, if you are losing capacity you might not be in a position to do so.  We have inserted a provision in our Durable Power of Attorney form that reads thus:

Waiver of Confidentiality to Financial Institutions for Reports of Fraud or Exploitation:

I waive all claims of breaches of confidentiality and release all claims against financial institutions for good faith reports to adult protective service workers or law enforcement of possible fraud or financial exploitation conducted against me. This includes claims that may be brought under the Gramm Leach Bliley Act or any other federal or state statute or regulation. I encourage reporting that might protect my interests.

Our DPOA also contains the following language:

Accounting and Reporting Responsibilities:

When practical, my agent should consult with me before taking any actions under the authority of this Durable Power of Attorney and report to me as soon as practicable after the action is taken. If I become unable to make or communicate informed decisions, then my agent shall also report to ***.

Such provisions can help mitigate some of the inherent risks in what is usually a very helpful document.

Kimberly E. O’Leary is a Professor Law & Director, Sixty Plus, Inc. Elderlaw Clinic at Western Michigan University Thomas M. Cooley Law School. Many thanks go to her for her guest post on our blog!