Power of Attorney or Guardianship for Older Adults: Confront and Avert Misuse

When it’s apparent that a power of attorney is being improperly used, is there any recourse? Here, we explore this important question.

Entrusted to Act

Older adults might want a designated friend or relative to hold power of attorney (POA) for them.  In this way, they have someone who can take care of their business when necessary.

With a durable power of attorney, an agent may continue to act for a person who no longer can.

Here is an example of the durable power of attorney for transferring a deed in California. See more state forms on our website.

Alternatively, a court may order a conservatorship or guardianship for an elder who’s been found to have already lost capacity to sign legal agreements and make weighty decisions. Until that court-issued  determination, an older adult retains the legal ability to carry out transactions. Transferring a deed is just one example.

If you give an agent the authority to transfer your real estate deed, the agent has a duty to act with due care, and in your best interest. A court can invalidate a POA if it finds your agent wielding power improperly.

What Constitutes Improper Pressure on Older Adults? States Take Specific Approaches to Undue Influence

Petitions for guardianships or conservatorships, as well as powers of attorney in the context of disputed wills, trusts, or property transfers can all become problematic. The typical problem is undue influence.  When an agent starts exerting pressure on an older adult, it’s hard to know when a line has been crossed.

And because influencing tends to occur in private, it can be even harder to call out.

Vulnerability to undue influence is commonly a factor when a court establishes a formal conservatorship to protect a person who had given a friend or relative power of attorney.

But what exactly is undue influence? It involves a relationship of trust, in which one person puts their own desires first — not the interests of the vulnerable adult.  

California: Exemplary Definition of Undue Influence

Excessive persuasion, overcoming someone’s free will, taking unfair advantage… All of these actions fit California’s definition of undue influence. A fact-finder might consider:

• The vulnerability of the person being influenced to the influencer’s affection or pressure.

• The influencer’s role in a (personal or professional) position of trust.  

• The use of control over information, drugs, necessities, social interactions, or sleep.

• Actions that change personal or property rights in a surprising or unfair way.

These are just examples, and not all have to exist in order to show that undue influence was in play.

What does this look like in real life? Imagine a daughter, living with her father. She isolates the older adult from other relatives. She has convinced him to pay her for caregiving. Under her pressure, he ultimately writes a will that leaves her his home and investments.

When the father dies, his other children challenge the will. The court finds undue influence. A jury decides that the fair thing to do is to distribute the father’s estate equally among his offspring, rather than let the “influencer” receive everything.

Avoid Misuse of Protective Authority to Sign Documents

To avoid misuse of the power you grant, you must understand it. Consult a lawyer of your choice if you’re unsure of the meaning of any part of the power of attorney form.

You and your designated agent will both sign the form, as with a contract. Your agent must promise to act according to your expectations, to the extent the agent knows your wishes.

Your agent must act in your best interest, and within the scope of authority you’ve granted in the document. You are free to set limits on that authority.

If you are asked to be someone’s agent, know that the power of attorney has safeguards. Courts can step in to advise.

Undue Influence in Real Life

A will came before the Middlesex, Massachusetts probate and family court in 2023. The issue before the court was whether the deceased, Montana Jasiul, who had been under a conservatorship, lacked capacity to sign the will. The will disinherited the deceased’s closest family members.

Someone can sign a will while under conservatorship. But again, there are guardrails. They involve family law and probate judges.

When the court first established the conservatorship, a psychiatrist had told the court how Jasiul had proved vulnerable to influence, suffered from dementia, and had already fallen victim to manipulation that resulted in a serious financial loss. So, the court decree stated that an independent psychiatrist was to evaluate Jasiul, to determine will-making capacity. The probate judge found that the psychiatric evaluation never took place.

There was a psychologist’s letter in the file, vouching for Jasiul’s capacity. But that was drafted five months before Jasiul executed the will. Testimony indicated that Jasiul was behaving erratically at the time of the signing. The will was set aside.

In Doubt? Ask the Court’s Opinion First

As an agent, you may petition the court for guidance. This way, the court will let you know what the boundaries are, so you won’t act beyond them.

You can always ask your own lawyer to petition the court for expanded authorities when necessary. That includes the authority to sign a will or convey the real estate deed.

When a court must make a determination for a vulnerable person, it can name a guardian ad litem to investigate facts, ascertain the older adult’s best interest, and speak to the court.

The court can determine whether a protected can sign a deed, will, or other document — or whether an agent’s signature is a must-have.