Legal power of attorney not perfect, but beats the alternatives

Winston Churchill once said that democracy was a crappy system, until you consider the alternatives (I’m paraphrasing of course). When I hear that, it reminds me of the controversy over powers of attorney (POAs, for short).

I mentioned in last month’s column that the legislature recently gave us a new statutory power of attorney. It cleans up a number of problems from the old version. One of the most maddening issues we had before was that you were not supposed to check the boxes for the powers that you wanted; instead you left the box blank if you wanted to give that power, and you put your initials in the box if you didn’t want it. That was contra-commonsensical, and a lot of people got it backwards.

The other big problem with the old form was that it used the term “disabled.” You could either check a box saying that this took effect on the date of your signature, or that it took effect when you became disabled.

But the definition of disabled in the statute wasn’t what people understand the word disabled to mean. The statute said that you are disabled if two doctors have examined you and they both sign a sworn document saying that you are not able to manage your own property or affairs. There is a perfectly good word for someone who is in that condition, but it isn’t “disabled,” it is “incompetent” or, if you prefer, “incapacitated.” The new form version uses “incapacitated.”

While I like the new version, it also causes me to think about POAs in general. My old friend Scott Sterling, who used to be the head of the Elder Fraud Section at the Office of Public Advocacy, was not a big fan of POAs. In his office, they sometimes saw cases in which POAs were used to defraud someone. An unscrupulous individual, sometimes even a relative, would convince the elder to sign off on a POA, and then they would use that document to drain the bank accounts, sell the assets and pocket the money themselves.

And I get that, I really do. A power of attorney can be used for the wrong purposes by someone who intends to do ill. But as Churchill said, consider the alternatives. If somebody is no longer able to manage their own affairs, and they don’t have a POA in place, they nearly always end up in guardianship court.

A guardianship case (or its near equivalent, a conservatorship case) is not somewhere you want to be.

When someone files the paperwork to start an adult guardianship, the judge immediately does three things. She sets a hearing. She appoints a “court visitor,” which is a social worker who will investigate and make a report and recommendation to the court. And she appoints an attorney to represent the respondent (the person who is allegedly not able to manage their own affairs).

This last part can cause issues. The attorney is supposed to advocate, not for what is best for the person (other people will do that) but for what that person wants. In other words, the attorney is the voice of the respondent in court.

That is a good thing in terms of protecting people’s rights, but it also means that, even in cases where it is quite clear the person needs a guardian, there is an attorney aggressively advocating for the position that they do not need one.

I have been appointed in cases in which the respondent was so far gone it was downright sad, but they couldn’t be convinced of that, and I had to present evidence, and cross examine witnesses, and argue to the court that they were still able to handle their own affairs. That can inevitably delay the case, cost a lot of money, and make everyone miserable, but it is sometimes what you have to do.

A second problem is that you can’t really apply for guardianship until the person is really not able to manage things, but by that time the situation may be critical. And yet the court system moves at the speed of, well, a court system. It can take months to get a guardian appointed, during which time the person may have caused irreparable financial or medical harm to themselves. There is a process to get an expedited decision, but typically the court only allows it when there is an immediate and significant medical issue.

And finally, these cases can be personally painful. It is often necessary to discuss, right in front of the elder respondent, the things that they have done wrong which have led to this pass. I have seen families torn apart as children reluctantly testified to all of the times that mom lost her keys, called up confused in the middle of the night, was walking around the yard in her underwear and so forth. If they don’t testify, the judge won’t know how bad it is, but they have to do that right there in front of mom, who may be embarrassed or angry.

Are powers of attorney 100 percent safe? No. Should people still have them? Yes, because the alternative is worse.

Kenneth Kirk is an attorney and estate planner in Anchorage. This article should not be taken as legal advice; for specific legal advice you should consult an attorney.