Power of attorney process under scrutiny

Power of attorney process under scrutiny


Posted: December 5, 2011 - 6:39pmWHAT’S NEXT

By Liz Montano cjonline.com Copyright 2011 CJ Online. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

December 5, 2011 - 07:39pm

Power of attorney process under scrutiny

580 WIBW RADIO

Jim Snyder, speaker pro tem of the Silver Haired Legislature, acted as the power of attorney for his parents.

Despite calling it a positive personal experience, Snyder said he believes the current system leaves vulnerable adults open to abuse.

That is a view shared by some in the Kansas House of Representatives.

Rep. Bob Bethell, R-Alden, spends a great deal of time on senior issues. He sits on an oversight committee for the Kansas Department of Social and Rehabilitation Services with Adult Protective Services and has been involved with the Kansas Attorney General’s Office with its abuse and neglect exploitation efforts.

“One of the biggest problems we see with abuse of the elderly is people who have been given power of attorney,” Bethell said. “That person, often one of the elder’s children, has a totally different attitude as to the elder’s estate and what it’s for.”

He said some look at it as an entitlement for themselves rather than something the elder put together for their own purpose.

“What happens is the exploitation is brought to light, but the elder doesn’t want to protest because it’s their child,” Bethell said. “In those cases, it’s difficult to prosecute the abuse.”

Bethell said the Legislature in January will consider House Bill 2108. The measure would transfer Adult Protective Services from SRS to the office of the attorney general, a move he hopes would pave the way for easier prosecution of elder financial abuse cases.

Attorney General Derek Schmidt said one’s mental state must allow him or her to understand his actions in giving power of attorney to another. Schmidt said a power of attorney is akin to a contract and gives a certain authority to deal with one’s affairs.

“It’s one thing to state what the law requires,” Schmidt said. “It’s quite another to apply that in individual cases with the vagaries of human life. But as a general matter, the person who is granting that authority to an attorney in fact does have to have the mental capacity in able to grant it.”

Schmidt said legislation resulting from several years of discussion to protect those granting powers of attorney is pending in the Kansas House of Representatives.

House Bill 2068 developed from a previous measure that was bolder, he said, adding that some provisions have been removed to allow the proposal to move forward. One would have required a power of attorney to be witnessed by independent parties, similar to a will.

Another would have required the power of attorney be filed at the Register of Deeds office, so someone other than the two contracting parties knew the power of attorney existed.

“There are additional procedural checks that could help make sure the powers are freely given and that safeguards are in place,” Schmidt said. “Efforts to accomplish that in Kansas in recent years have been met with enough resistance that they have been removed from legislative proposals to salvage other parts of the proposal.”

Bethell said he is interested “in taking a good look” at making it mandatory for attorneys to have proof of an elder’s mental competence and cognizance prior to helping assign a power of attorney to another individual.

Douglas County District Court Chief Judge Robert Fairchild said that while it may be a good idea to have a physician’s statement regarding an individual’s mental capacity, he believes making it a law probably wouldn’t be a good idea.

Fairchild said some physicians likely wouldn’t be comfortable signing such a statement as no one clear test exists to determine cognizance.

“A law requiring such (a statement) in every circumstance would be expensive, burdensome and unnecessary,” he said.

Fairchild said an attorney who questions the capacity of the elderly person should do so outside the presence of the person who is to receive power of attorney status to make sure he or she understands what is taking place.

The attorney shouldn’t continue with the process if there is any question about the mental state of the elderly person, he said.

Ernie Kutzley, advocacy director for Kansas AARP, wants to see state legislative support for the Uniform Durable Power of Attorney Act.

“It makes sense to have a law regulating powers of attorney be uniform countrywide,” Kutzley said.

He said the train of thought among lawmakers is that current laws in Kansas do more to protect seniors than would the proposed Uniform Durable Power of Attorney Act. Kutzley, however, believes a consistent law across the country would enhance protection for seniors.

“It would be a heavy lift,” added Kutzley, who said each part of the uniform code would have to comply with current Kansas law.

Schmidt said Kansas has a good system in place for protecting seniors from abuse of powers of attorney.

“On the whole, Kansas stacks up pretty well with other states,” he said. “I also think there are things we can do better. That’s an ongoing discussion, and we are trying to improve the circumstance.”

Liz Montano is a news anchor and reporter with 580 WIBW Radio. She can be reached at (785) 228-7211
or liz.montano@morris.com

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http://cjonline.com/news/2011-12-05/power-attorney-process-under-scrutiny

Editor's note:  Alice R. Gore was a disabled 99 year old ward of the Probate Court of Cook County in Judge Kawamoto's courtroom.  Alice's daughter had power of attorney and metered out Alice's care very carefully while still providing Alice with the best care possible. Alice's daughter's attorney in collaboration with a GAL assigned to Alice's case contrived a plot to convince the daughter to drop the POA and become Alice's guardian because, as the daughter's attorney stated, "Guardianship trumps all." The result was Alice's million dollar estate was depleted in less than three years by the court predators and no money was available to bury Alice.  Lucius Verenus, Schoolmaster, ProbateSharks.com

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