The Dark Side Of Health Care Powers Of Attorney – Part 1

By Cary A. Lind

I have written previously about the uses and abuses of powers of attorney for property (See Estate Department articles entitled Powers of Attorney (4 parts)), and I continue to see situations in which property POAs are abused. However, I have recently seen several cases where agents have misused POAs for health care. As with property POAs, the abuse of HCPOAs can seriously impact both the principal and others. The agent under a HCPOA has almost total control over the personal life of the principal. What follows is a story taken from a real case with names and certain facts changed.

Scenario 1.

Anna has two daughters, Nancy and Dale. Anna loves both of her daughters equally, but they do not get along at all. Shortly after she suffered a stroke, Anna signed a HCPOA naming Dale as her agent and Nancy as the successor agent. As Anna’s agent, Dale moved Anna into her own home, and hired a full-time live-in caretaker for Anna. The caretaker, however, is foreign born and does not speak English well.

Nancy is an assertive person, and for many years, she took the lead in helping Anna and her late husband with their health issues. Dale is not assertive and has never been able to stand up to Nancy. Once Anna moved in with Dale, disagreements began. Nancy wanted continued information about and input into Anna’s health decisions. Dale gradually cut off that information and refused to talk to Nancy about Anna’s health. Nancy became increasingly frustrated by Dale’s shutting her out and feared that Dale was not making the best decisions for Anna. The more Nancy tried to get information and talk to her sister about Anna’s health issues, the more Dale considered those efforts to be interfering with her authority, the more she refused to discuss Anna’s health with Nancy, and the more she cut off Nancy from contact with her on any issue.

Dale’s husband, Don, also became involved in order to shield and protect Dale from Nancy. When Nancy came over to visit Anna, Dale was not there, but Don kept close by and did not give Nancy any opportunity to talk privately to Anna. Don also was also antagonistic when Nancy’s children and grandchildren (Anna’s only grandchildren and great-grandchildren) came to visit to the point where they would no longer come to see Anna. Dale and Don then imposed strict limits on any contact by Nancy with Anna. Nancy could take Anna out for two hours per week and could only talk to Anna on the phone two times per week around Anna’s bedtime, when if she was not already sleeping, she was not at her best.

As with the restrictions on giving Nancy medical information, Nancy wanted to be able to call Anna and talk to her any time she wanted to subject only to Anna’s schedule. After all, there was a caretaker there who could pick up the phone and hand it to Anna. Dale’s response was that when Nancy spoke with Anna, she always asked her questions that agitated her and left her upset and crying. Dale also said that the same thing happened when Nancy brought Anna back from a visit, and Dale insisted that Nancy not upset Anna. Anna was frequently upset, but it was likely caused in significant part by her depression. As matters worsened, other disputes arose, and Dale finally cut off all visitation and limited contact to at most the two phone calls per week. Sometimes when Nancy called, no one answered, and Nancy did not talk to her mother at all.

The results of this dispute were several:

Anna went from seeing both of her daughters regularly to not seeing Nancy at all. Dale justified the restrictions as necessary in order to keep Anna calm, free from agitation, and out of disputes between Dale and Nancy. Anna did not see her only grandchildren and great-grandchildren at all.
Anna also went from having two daughters’ input on her medical needs to only one daughter without regard to who would make “better” decisions for her. To Dale, however, to allow Nancy’s input would again allow her to “interfere” in Anna’s care and to agitate her without any restrictions, and Dale did not want to lose her absolute control of the situation.
Anna spent most of her days inside a house in bed with little or no stimulation and with no one to talk to for much of the day. Dale did so to keep Anna from being upset.
Dale would not agree to place Anna in an assisted living facility where she could interact with many people (who she could understand) on a daily basis rather than in Dale’s home. To Dale, that would allow Nancy and her family much greater access to Anna and would allow them greater opportunity to upset her. Although Anna had ample assets to pay the bills, Dale also did not want to spend more of Anna’s money on a facility and wanted to conserve Anna’s assets. Nancy believed that Dale and Don were paying themselves from Anna’s money and wanted to keep doing so, with their goal being to ultimately receive more of Anna’s money than Nancy.

Note: There are situations in which it is not only permissible but important to severely restrict visitation by a child, e.g., by requiring a supervisor to be present during the visitation. Such a situation can occur where a child lies to and upsets the parent to the point where it is medically necessary to prevent that from happening. If Nancy was the cause of Anna’s agitation and if that agitation was unhealthy for Anna, such a restriction would be justified.