THE DARK SIDE OF HEALTH CARE POWERS OF ATTORNEY – Part 2
By Cary A. Lind
Faced with the situation described in Part 1, what can aggrieved party (the “Objector”) do?
The Illinois Department on Aging.
The Illinois Department on Aging (“IDA”) is charged with protecting the elderly against abuse, financial or otherwise. Its hotline number is 866-800-1409. Its website is state.il.us/aging. The agency does not do its own investigations, but it delegates its work to private agencies on a geographical basis. For example, in the North and Northwest suburbs of Chicago, Catholic Charities, Kenneth W. Young Centers, North Shore Senior Center, and Metropolitan Family Services are among the investigating agencies.
A complaint to the hotline can “help” the Objector by initiating a fast and thorough investigation. If the local agency finds wrongdoing, it may report the circumstances to the Public Guardian, the police, the State’s Attorney, or other local authority for action. For the party being investigated (“the Respondent”), the inquiry can be a significant imposition, especially when it is not well-founded. It is not uncommon for a complaint to be initiated solely to harass the Respondent or for other improper purposes. The local agency also may attempt to mediate family disputes. However, it must make an appropriate determination. It is not up to the agency to substitute its judgment for that of an agent as to what would be the “best” treatment for the principal, so long as the ongoing situation is not improper. It is also not up to the agency to prevent a competent older person from making unwise decisions.
In the scenario set forth in Part 1, a report to IDA would probably not have helped and would probably have made the situation even worse. Dale had no desire to settle, there were no overt signs of “abuse,” and Anna looked to be well taken care of.
Other Non-Court Alternatives.
There is nothing to prevent any interested citizen from directly reporting elder abuse to the police, State’s Attorney, or other governmental authority. The end result may be the same as initiating an investigation with IDA but without the agency acting first and without the credibility that an agency complaint carries. The governmental authority, however, will not undertake mediation but may only prosecute a crime or petition for guardianship where necessary.
If governmental agencies will not act or if the disputes cannot be worked out, the only way for the Objector to obtain any legal relief is to initiate guardianship proceedings. Guardianships are almost always complicated, but adding POA issues increases the complication and the cost. (See prior Estate Department articles dealing with procedures and requirements of guardianship).
An Objector has two potential avenues to void a HCPOA. The first way is traditional, i.e., to prove that the HCPOA was not valid at the time of its execution because of the principal’s lack of capacity, failure to follow the legal requirements for execution, or because of undue influence, breach of fiduciary duty, or other wrongdoing. If the HCPOA was not valid when it was executed, it is not valid now.
The second basis is by means of §2-10 of the Power of Attorney Act, which states as follows:
§2-10. Agency-court relationship. Upon petition by any interested person (including the agent), with such notice to interested persons as the court directs and a finding by the court that the principal lacks the capacity to control or revoke the agency; (a) if the court finds that the agent is not acting for the benefit of the principal in accordance with the terms of the agency or that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal’s person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency, or may enter such other orders without appointment of a guardian as the court deems necessary to provide for the best interests of the principal; or (b) if the court finds that the agency requires interpretation, the court may construe the agency and instruct the agent, but the court may not amend the agency. Absent court order directing a guardian to exercise powers of the principal under the agency, a guardian will have no power, duty or liability with respect to any property subject to the agency or any personal or health care matters covered by the agency….
§2-10 applies to PPOAs and HCPOAs and affords the only “legal” method for avoiding an otherwise valid POA. That section assumes a valid POA and allows the Objector to void all or part of the POA by coming within that statute. To date, there are only limited court decisions which set out any guideposts as to the nature or extent of the proof necessary to meet the requirements of the statute, and an attorney invoking §2-10 needs to work primarily from the language of the statute in determining what may be sufficient proof for a court to act.
Under the facts set forth in Part 1, Nancy would have to come within sub-paragraph (a) above. Nancy could argue that cutting off her contact with Anna constituted “not acting for the benefit of the principal in accordance with the terms of the agency” and probably “caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal . . .” in that Nancy no longer had any input regarding Anna’s care. Nancy could then ask the court to revoke the HCPOA or the court could direct that the POA be exercised only in certain ways.
©2007 by Cary A. Lind, all rights reserved.