Wednesday, December 10, 2008

POA Abuse Report and a PA POA Trial

On December 4, 2008, the AARP Public Policy Institute and the American Bar Association's Commission on Law & Aging, issued a research report entitled "Power of Attorney Abuse: What States Can Do About It" (Nov., 2008), which "explores the problem of power of attorney abuse and how state legislatures can protect vulnerable adults against it."

More specifically, the Report "explains how the new [model]
Uniform Power of Attorney Act helps prevent, detect and redress abuse, and provides resources to promote enactment of this model law."

The Full Report (PDF, 88 pages) was co-authored by Lori A. Stiegel, JD, & Ellen M. Klem, of the ABA's Commission on Law & Aging. A summary is available online either in HTML format or PDF format.

This [AARP Public Policy Institute] research report explores the problem of power of attorney abuse and how state legislatures can protect vulnerable adults.

Powers of attorney are legal documents used by individuals to empower someone else to act on their behalf. As the population ages, the power of attorney will be used increasingly to appoint trusted family members or others to handle financial decision-making.

But it also can be a ‘license to steal,’ because it grants broad powers with little oversight.

The report shows that a large majority of states lack protections against abuse. The Uniform Power of Attorney Act, a model law, lays the groundwork for keeping seniors safe from abuse, while allowing them to plan for the future. (88 pages)

As noted in an article entitled "Elder Abuse Resource", published in the October, 2008 issue (Vol. 30. No. 1) of Bifocal (the ABA Commission's newsletter), two "fact sheets" were provided for use in the Report regarding Durable Power of Attorney Abuse, both now posted online:
The ABA Commission also posted a chart of Power of Attorney Laws: Citations, by State (PDF, 2 pages), which was expanded as to specific provisions in the Report.

The Report was noted in an article posted by AARP entitled "License to Steal: When Power of Attorney Is Used to Abuse" (12/05/08) by Carole Fleck posted online by AARP Bulletin Today.

The article highlighted perceived increasing financial elder abuse through use of a durable power of attorney, which is intended by laws to assist and protect the maker, not turn the maker into a victim of misappropriation or theft.

The power of attorney can be “a license to steal because it grants broad powers with little oversight,” says Naomi Karp, a strategic policy adviser at AARP. * * *

“We have definitely seen an increase in the number of referred cases of exploitation, particularly those that deal with power of attorney documents,” says Art Mason, director of the elder abuse prevention program at Lifespan, a nonprofit in Rochester, N.Y., and president of the National Adult Protective Services Association. “The vast majority of cases involve someone in the family.”

The saga typically begins when an older adult, usually a woman whose husband handled the finances, becomes widowed and starts to fall behind on her bills. Often, an individual’s diminished mental capacity plays a role in the need for help from family or friends.

This creates the opportunity for someone in the family or a trusted friend to take advantage of a vulnerable person, “with no criminal consequences,” Mason says.

“For 10 years now, it’s been a battle to get legislation passed that would give law enforcement more opportunities to go after people criminally who abuse their power of attorney.”

Issuance of the Report was also noted in a nationally published article, entitled "Senior citizens can lose life savings via power of attorney" (12/04/08), by Sandra Block, posted by USA Today. That article noted some bullet point reminders as to "[h]ow to protect yourself when assigning power of attorney":
  • Trust. Don't give anyone even a child or spouse power of attorney unless you thoroughly trust that person with your finances, says Naomi Karp, strategic policy adviser for the AARP Public Policy Institute.
  • Verify. Consider requiring the person who has power of attorney to periodically report to a third party, such as your lawyer or another family member.
  • Communicate. Make sure other family members know who has your power of attorney. That way, Karp says, they can be on the lookout for misconduct.
For an illustrative case of alleged financial abuse under a durable power of attorney, read a Press Release, issued November 29, 2007, by the PA Attorney General's Office, entitled "Attorney General Corbett announces criminal charges against a Schuylkill County couple accused of stealing more than $84,000 from an elderly man."

The trial on those announced criminal charges is now underway in Pottsville, PA in a Schuylkill County Common Pleas criminal jury trial, according to "Caregivers on Trial for Stealing Thousands" (12/09/08) by Norm Jones, posted by WNEP (TV-16) (Northeastern PA):
A trial began Monday for a Pottsville couple accused of stealing tens of thousands of dollars from an elderly man they were supposed to take care of.

The state attorney general's office is handling the case because the district attorney asked for the state's help in investigating the theft and conspiracy case.

Monday attorneys for both sides made opening statements in the trial against Robert and Catherine Whitney. They are charged with stealing $85,000 from Louis Long of Mahanoy City.

The Whitneys' attorney is trying to prove they didn't steal from Long, but had permission to use his money to pay for his care.

The attorney general's office told jurors the Whitneys milked more than $85,000 from Long's bank accounts but defense attorneys painted a much different picture, about a family who took in an elderly man and when he was stricken with Alzheimer's, cared for him 24 hours a day, seven days a week. * * *
For a further account, see "Were pair thieves or caregivers of elderly man?" (12/09/08), posted by The Morning Call (Allentown, PA):
A Schuylkill County couple befriended a man at the outset of his Alzheimer's disease, took him into their home and drained $167,000 from his accounts before his bank teller friends alerted authorities, who removed him from the home a month before his death, a state prosecutor told a jury Monday.

But the lawyer for Catherine Whitney, 58, and her husband, Robert, 57, said they did nothing more than take in and provide end-of-life care for a friend who made them promise they wouldn't let him die in a nursing home ''alone, isolated in loneliness, cared for by no one, loved by no one.'' * * *
In the setting of this criminal trial where the principal is deceased, consider this: Pennsylvania law already contains many protections intended to prevent financial elder abuse -- far more than many state laws reviewed in the Report.

Yet financial abuse of the elderly continues statewide. See: PA EE&F Law Blog postings "POA Abuse Cases Pressed by PA AG" (12/03/07) and other postings under the topic "Powers of Attorney."

Soon, though, the current Pennsylvania law (Chapter 54 of Title 20 of PA Consolidated Statutes) will be revisited by a study group of the Decedents Estates' Laws Advisory Committee, of the Joint State Government Commission, to reconsider whether those existing protections are sufficient.

Update: 12/12/08:

"Robert M. and Catherine M. Whitney, charged with stealing almost $85,000 from an elderly Mahanoy City man they were caring for, were convicted Thursday in Schuylkill County Court of stealing $10,000 to pay taxes," according to an article, "Jury: $10K stolen from elderly man" (12/12/08) by Peter E. Bortner posted by The Republican & Herald (Pottsville, PA).
As the Pottsville couple's daughters wept, a jury of seven women and five men deliberated more than seven hours before finding Catherine, 58, and Robert, 57, each guilty of three counts of theft, but not guilty of five other charges, four of theft and one of conspiracy.

President Judge William E. Baldwin, who presided over the Pottsville couple's four-day trial, ordered preparation of a presentence investigation but did not set a sentencing date. He allowed them to remain free on $75,000 unsecured bail pending sentencing.

Two of the thefts are felonies with a maximum prison term of seven years, while the third is a misdemeanor with a maximum possible sentence of five years, Senior Deputy Attorney General Anthony W. Forray said.

"Absolutely," Forray said when asked if prosecutors will seek to send the Whitneys to prison.

The Whitneys, who did not visibly react to the verdict, said nothing as they left the courtroom, but their lawyer, Frederick J. Fanelli, Pottsville, said they would consider filing an appeal, which would not occur until after sentencing.

"We're disappointed in the counts that resulted in conviction," he said. "It's a curious verdict." * * *