New Uniform Power of Attorney Law Offers Better Opportunities to Stop Financial Exploitation
Gormley, Jennifer S., P.C.
Jun 03, 2010
Colorado - Denver Metro
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This article explores how new requirements in the Uniform Power of Attorney Act (UPOA) encourage law enforcement to collaborate with government agencies, such as Adult Protective Services (APS), to prevent financial exploitation of at-risk adults. The new law:
Provides more teeth for enforcement against agents that illegally utilize the power of attorney for their personal gain.
May help prevent agents with sticky fingers from dodging civil or criminal penalties.
May prevent agents from hiding behind gifting powers or other broad language interpreted by them to permit self-dealing.
Better defines the duties and requirements of the power of attorney; and
Provides a reporting requirement that increases transparency of the agent's activities.
The UPOA better enables law enforcement and other government agencies charged with protecting the welfare of at-risk adults to stop the exploitation. In the past, a report of exploitation would typically not be investigated by law enforcement because of the difficulties dealing with financial crimes and limited resources. These crimes are tedious to investigate because of they are paper crimes usually without witnesses. Also, the exploiter that uses the power of attorney to gain access to the assets can hide behind various clauses in the power of attorney to justify or defend the conversion of the property. For example, many powers of attorney contain broad gifting powers that permit the agent to give away the principal's assets. The gifting authority may have been intended to be used for estate tax planning or Medicaid planning, but if not limited, the agent could simply exploit the estate by making gifts. The new power of attorney act allows for gifts limited to the Internal Revenue Code annual exemption, which is currently $13,000 per year, per individual. Broader gifting powers must be expressly provided in the document.
Financial exploitation happens quickly and can go undiscovered for a long time. It is especially sinister because the exploiter is supposed to be a trusted agent, but instead fleeces the estate they are appointed to protect. The exploitation may be suspected by subtle changes in behavior or spending habits of the person, but often no inquiry is made because of privacy concerns. More obvious indicators may be drastic changes in banking or investments, or new mortgages being obtained. The exploitation is typically discovered by someone close to the person. The person concerned about possible exploitation has various avenues to seek help, but not all will result in protection.
Three ways of handling suspicions about financial exploitation are as follows:
Informing family members of concerns.
Making reports to law enforcement or adult protective services; or
Filing a civil action to remove the agent or to allege exploitation in a petition for conservatorship.
In the past, obtaining evidence of financial exploitation was always challenging and often took too long. Such delays provide an exploiter with more time to hide evidence, steal money and escape prosecution. The UPOA provides a fast tool to deal with suspected exploitation by requiring the agent to provide a report within thirty (30) days upon a request. The new law states that a fiduciary or governmental agency having authority to protect the welfare of the principal can require the agent to disclose receipts, disbursements or transactions conducted on behalf of the principal within thirty days. In using this tool, both law enforcement and adult protective services (APS) can more quickly seek protection for the at-risk adult.
The prompt reporting requirement mandates the agent to act and bypasses the need for a subpoena or court order. An agent's failure to comply within thirty days is a breach of the agent's duty and may provide further confirmation that the estate is being mishandled. This reporting requirement is substantial because it causes the agent to provide the necessary evidence in a timely manner. The direct involvement of law enforcement and APS underscores the important message to all agents that financial exploitation will not be tolerated.
Editor's Note: This article was submitted by By Jennifer S. Gormley, Esq. She may be reached at 303-783-9600
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