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When Delegation becomes Exploitation

Written by Legal Aid WV


In a perfect world, everyone would have a whole file cabinet filled with documents protecting themselves, their assets and estates and their loved ones. The persons delegated to act on their behalf would be honest and trustworthy, everyone would receive the medical care they want, and no one would ever have to worry about losing money or property, either during their lifetimes or after.

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It is not a perfect world, and even folks who do have the foresight to have the right documents in place often find themselves the victims of financial exploitation. There are ways to protect yourself, however, with careful planning and drafting.

Medical Power of Attorney/Living Will:

This is, perhaps, the most important document a person can have, mainly because it affects you while you are still alive. Designating someone to act as your medical power of attorney allows that person to make decisions regarding your MEDICAL care (NOT your financial affairs), which can range from the kind of medical treatment you receive – or do not receive – to the manner in which you live and even die.

The first portion of the document appoints the medical power of attorney. Make sure this is someone you trust, someone who knows your wishes and someone you can be sure will follow those instructions. Without a medical power of attorney designation, if you are unable to make your own medical decisions (you are unconscious, intubated, unable to communicate) your physician can designate a surrogate health care decision maker. By law, there is a list of eligible persons who can be a health care surrogate, ranging from spouse to children to siblings and others. It may be that the person on the top of the list is someone you absolutely do NOT want to make your decisions. So, take advantage of your ability to name who YOU want, not whomever happens to be next in the statutory list of eligible persons.

Usually a medical power of attorney is combined with a living will. This latter portion is where specific directions and desires are set forth. Don’t want a ventilator? Put it in there. Desire cremation, organ donation, or not? Put it in there. Want to be kept pain free, use experimental procedures, do all things possible? Put it in there. Otherwise, your medical power of attorney can make the decisions, and they may not be choices you otherwise would make.

Another aspect of this document is to state who you do NOT want to make health care decisions for you. For example, you’ve named your spouse and Child No. 1. But in the event they both are not around or unable to act for you, your physician would again need to resort to appointing a health care surrogate. If you stated in your living will that under no circumstances should Child No. 2 ever be appointed your surrogate, the physician will skip that person and move on to the next. So, while you may not have the third person specified, you do have a prohibition against the person you would never want to make your health care decisions.

Durable Power of Attorney:

So many clients come in wanting a last will and testament, but never think about executing a power of attorney until I mention it to them. Again, this is important, because it affects you while you are still alive. It allows someone to make FINANCIAL (not medical) decisions on your behalf.

Powers of attorney can get really creative and can go far toward protecting a person and their assets from dishonest transactions. First, be sure that your designee, your agent, is someone that you absolutely trust to manage your affairs. Do not appoint someone out of convenience, or because they have talked you into it. The latter is a big, red warning sign! Signing a power of attorney is your decision alone, and you should not be influenced by someone wanting to get their hands on your property or money.

The power of attorney can take place immediately, or when you become incapacitated. In some cases, the authority to act on your behalf can “spring up” when there is a contingency that you alone name. This is, quite appropriately, called a springing power of attorney. Under this scenario, you continue to manage your own affairs, but if you become ill, incapacitated or simply don’t want to deal with financial matters for a period, the person you named steps up and handles everything. Then, when you recover, the contingency ends or you want to be back in charge, the authority goes away until it is needed again.

Regardless of which type of document you sign, it is helpful to put in a review clause or a “second set of eyes” provision. Under the review clause, you state in the document that you want your agent to review what he or she has done with your finances and affairs every six months or so. That let’s you maintain supervision over your affairs and keep an eye on what is happening with your finances. Likewise, designated someone else to review the records and see what your agent is doing keeps the pressure on your agent to conduct your affairs in an honest, open manner.

These are just two examples of how you can maintain control over both your medical and financial affairs. By executing a medical power of attorney, living will and durable power of attorney, you and you alone can decide who manages your medical and financial affairs and how. By paying attention to the details and specifying your wishes clearly, you can protect yourself and many aspects of your life from financial exploitation.

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