The Dark Side Of Health Care Powers Of Attorney – Part 6

By Cary A. Lind

Changes To Testamentary Plans

Sometimes a health care power of attorney can open the door to more wide-reaching changes. Although the agent under a property POA is not authorized to change any disposition of the principal’s property which takes place at death (see prior Estate Department articles on misuse of property powers of attorney), it is not unusual for the “new” agent under a HCPOA to take the parent to an attorney for a “new” testamentary plan (often with substantive changes in property disposition) along with execution of the POAs. It is also not uncommon for a parent who is aging to not want to say no to any of the children for a variety of reasons. The parent then “agrees” with each child, even when the “agreements” are contradictory. Often, those contradictory positions contribute to causing the disputes among the children.

As a practical matter, a “current” testamentary plan can rarely be effectively challenged while a parent is still alive. The parent is the proper plaintiff to file suit, but the parent usually cannot or will not do so. An agent acting under a valid POA can file suit on behalf of the parent but may have to do so without clear or consistent testimony from the parent and facing adverse testimony by the defendant. Any other plaintiff may lack standing to challenge any estate plan while the parent is still alive, and any plaintiff will almost always be acting at least in part in his or her own self-interest as one who will benefit from undoing the changes. A non-agent has a somewhat better chance to challenge the plan through a guardianship if the legal requirements can be met. If a guardian is appointed, the issue can be raised and the court can act (See §11a-18(a-5) of the Probate Act and its sub-parts). In the absence of a guardianship or the parent’s sufficient cooperation, the best advice an attorney can give to a client is to document everything that is relevant in anticipation of an eventual challenge after the parent dies.

Conclusion

All of the above clients (except Scenario 2) came to me within a period of several months. It is obvious that siblings are taking out some of their rivalries in new ways with often unjustified and heartbreaking results to other siblings. It is not only cruel to an excluded child not to see a parent, but it is cruel to a parent when contact with a child is cut off, especially if the child can contribute to making the remaining life of the parent better with input, insight, caring, or good judgment or in other ways. As opposed to fights over money or property, these cases are fights over control. Property can usually be divided, but control usually cannot.

Some of the children who are cut off have taken care of the parent, often at great personal sacrifice. Some might be considered “overly attached” to the parent, but whatever the motive and “rewards,” a long-term pattern of care was in place. Cutting off the input of the caretaker child can result in a loss of continuity of care and input as to the parent’s wishes, and the child is often set adrift without the anchor that the parent previously provided. Scenarios 1, 2, 4, and 5 above are still in progress as these articles are being written, and the long-term outcomes remain to be seen.

The only current remedy for this situation is pursuant to §2-10 of the Probate Act, either with full guardianship or not, and it has limits. Without full guardianship and to modify the agency pursuant to Section §2-10 as noted above, there must be “a finding by the court that the principal lacks the capacity to control or revoke the agency.” The court can then take any of the actions authorized by that statute. If the court does not or cannot make that finding, the POAs will stand, and there is no remedy. Period. In order to proceed to full guardianship, the court must first void the agencies under §2-10 in their entirety and then find that the respondent is disabled as defined in §11a-2 of the Probate Act as “a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.” In either case, contact with the parent may be cut off during litigation prior to any decision being made. On the other hand, limiting HCPOAs defeats a major goal, which is to avoid guardianship and its significant expense. Changing the Power of Attorney Act to allow co-agents on statutory POAs will not avoid the situation, because in the case of deadlock between the agents, proceedings under §2-10 or full guardianship may again be the only ways to resolve the situation.

A recent case suggests a very different rationale to obtain visitation with parents. Struck vs. Cook County Public Guardian, No. 07-2420, decided October 31, 2007, by the Seventh Circuit Court of Appeals, upheld the District Court’s dismissal of a case based on the “probate exception.” Under that exception, a Federal Court will rarely assert jurisdiction over matters involving Probate or similar civil actions (such as divorce) on the basis that such proceedings are basically “in rem” and the Federal Courts will defer to the greater experience and familiarity of the state courts with such matters. The opinion by Judge Richard Posner is surprising for what is probably dicta in the case:

And the plaintiff does have a claim on his own behalf – that the guardian is preventing him from seeing his mother and by doing so, is depriving him of liberty protected by the due process clause of the Fourteenth Amendment , liberty that he argues included the right of an adult child to associate with his parent.”

The court did not have to answer or even raise that question in Struck, because the 7th Circuit dismissed the case, but the Court raised some tantalizing questions: Is there a constitutional right to see a parent? If so, what limits are there, if any? How definite must the limits be to prevent a child from seeing a parent?

As attorneys, we should try especially hard to resolve these disputes to the best of our abilities short of litigation. The guiding principles should be the same as what a court follows in guardianship cases, namely, the best interests of the parent. Fights between siblings should never win out over the interests of the parent, even if the parent cannot tell us what he or she wants. Scenario 5 is the ideal solution, although not all clients can put aside antagonism and follow through as thoroughly as did Chris and Eric. Perhaps new solutions are called for and will be developed that will not leave guardianship as the only recourse. Until then, in the absence of settlement or other tools, we can only utilize the remedies at hand.

Additional Reading.

I strongly recommend reading an article in the Chicago Bar Association Record of September, 2007, by Judge Patrick T. Murphy, the former Cook County Public Guardian and a tenacious advocate for individuals who need to be protected. Judge Murphy details the increasing incidence of elder abuse in a rapidly growing population of senior citizens.

He recommends that judges in a variety of divisions of the court receive extra training in areas that affect the elderly with the goal of eventually establishing an Elder Division of the court in similar manner as the Juvenile Division was established over a century ago.

I also recommend reading Helen Gunnarsson’s article in the November, 2007, ISBA Journal entitled Of Principals and POAs: Protecting the Elderly from Themselves, which covers slightly different situations with similar issues to those in this series of articles.