Q: Brother placing mother in AL facility beyond her means and plans to draw down limited assets.
My brother just received POA for my 82 year old mother. We have searched for an assisted living facility and found one that will cater to her needs and income (approx $3,000 per month). He unilaterally decided to place her in a more expensive facility ($4,300 per month) and draw down on her assets ($150,000). I am concerned as the monthly rent does not cover the medical care she will need. Should I hire a lawyer for her, or is he within his rights as POA to make this decision?
A: He probably does have that authority under the POA but he would be well advised to consult an elder law attorney regarding options for paying for your mother's care. Medicare should be paying for her medical bills, most likely, and there are legal ways to accelerate eligibility for Medicaid to pay for the facility's charges but most people have no clue how to do this without the help of an elder law attorney.
A: This is an interesting question. A POA authorizes another person to handle financial affairs, as opposed to personal decisions, such as where to live. You could go to court and ask to be appointed the conservator of the person (as opposed to the estate) and then you'd have the power to decide issues like where she should live. But it is possible he is pursuing a strategy to make her eligible for Medicaid. I would suggest trying to speak to him to learn more about the situation.
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POWER OF ATTORNEY IN CONNECTICUT
Generally speaking, Powers of Attorney (POAs) in Connecticut assign decision-making authority typically performed by the principal, to one or more agents. The scope of this authority may be limited or broad and one or more agents may be given such authority. If there is language in the POA addressing specific considerations such as real estate, draw down of assets and inheritance, the terms of the POA that address these topics will be the controlling language Probate Courts examine when determining whether an agent acted within the bounds of his fiduciary responsibilities to the principal. In the absence of language addressing these matters, generally, the standard to which an agent is held is whether he acted in the reasonable expectations of the principal, in the best interests of the principal and the agent is required to keep a record of all receipts, disbursements, and transactions made on behalf of the principal. Please note that with informed consent, a principal may decide to waive certain recordkeeping and/or accounting requirements.
An agent’s authority can be terminated if any of the following events occur:
• The principal revokes the authority;
• The court appoints a conservator and chooses to terminate the agent's authority;
• The agent dies resigns, or becomes incapacitated;
• If there are co-agents, and they did not act jointly (unless other specified in the POA); or
• POA terminates.
If there is a suspicion of abuse of power by an agent or co-agent, certain individual(s) may petition the Probate Court to review the agent’s actions. These individuals include: be required to provide an accounting at the request of family members, presumptive heirs or beneficiaries, guardian, conservator, descendants, caregivers, or a person who demonstrates “sufficient interest” in the principal’s welfare.
In the event a court finds an agent or co-agent has abused power or used his authority inappropriately, there are available remedies which include, but are not limited to:
• Revocation of power of the agent by the principal
• Claim for an accounting (as mentioned above)
• Claim for conversion
• Claim for interference with the inheritance of another
An agent who violates the provisions Connecticut’s law on POAs is liable to the principal or his or her successors in interest for an amount required to restore the value of the principal's property to what it would have been if the violation did not occur and reasonable attorney's fees and costs paid on the agent's behalf. Furthermore, an accounting may be required by the court (unless the principal waived certain recordkeeping requirements).
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