Amanda Cluff, Senior Editor, Albany Government Law Review Member
I. Background
One of the most prevalent concerns in both elder and healthcare law is the abuse of rights bestowed upon a durable power of attorney.[1] Numerous stories circulate daily regarding elderly persons who have been financially manipulated by individuals designated to this important role. A power of attorney is defined as “a legal document through which a principal authorizes an agent [also known as an attorney in fact] to act on the principal’s behalf.”[2] This power usually terminates once the principal—the person who authorizes the power to an agent—becomes mentally incapacitated, or otherwise unable to exert decision-making abilities.[3]
However, when a durable power of attorney is created, the power of attorney continues to remain effective, even after such incapacity occurs.[4] This sort of power can be beneficial in several respects. First, the durable power of attorney can replace an unfamiliar court-appointed guardian or conservator.[5] In addition, those who are given a durable power of attorney are able to make both personal and property decisions in the best interests of the principal, who lacks capacity to do so.[6] However, the danger of a durable power of attorney is also what makes it beneficial—the durable power of attorney is given virtually unconstrained and very broad authority to handle the principal’s financial affairs.[7] Consequently, this is a power that is difficult to monitor and, therefore, may be subject to various forms of abusive or fraudulent behavior by the agent.
