Parent, May I? : Avoiding Children’s Games and Side Steps with Power of Attorney

Introduction

As parents grow older, children and other family members often take on new responsibilities for their financial, legal and health decisions. Under the law, a person is allowed to appoint another person to act in their behalf, belief and benefit. A Power of Attorney is the legal document which details and grants authority for one person, an Attorney-in-Fact to act, on behalf of another person, the Principal. A Durable Power of Attorney extends the authority granted to an Attorney-in-Fact in the event that Principal becomes terminally ill, physically incapacitated or mentally incompetent. A Limited Power of Attorney grants authority for the Attorney-in-Fact to act only for specified matters or time periods.

Certain conflicts of interests, challenges of influence and crises of impact can arise when children or relatives serve as an Attorney-in-Fact for ailing or aging principals. In order to ethically and efficiently carry out their duties, an Attorney-in-Fact for a parent or relative should apply the principles from the children’s game, "Mother, May I." Considering carefully the ailing or aging principal’s answer to the question, “Principal, May I? helps to avoid wrong moves with the affairs of the adult Principal.

An Attorney-in-Fact who is related to the Principal by blood or marriage can find end up in a game of “Principal, May I?” Major decisions such as selling property, hiring a home health assistant or borrowing funds against an asset can cause a struggle between the Principal’s Intent and the Attorney-of-Fact’s Influence. An Attorney-in-Fact who is also a family member may unknowingly and unintentionally make requests and take steps that are more in the interest of the Attorney-in-Fact than the Principal.

The Voice of Ethics and Voice of the Principal should prompt the Attorney-in-Fact continue, complete, cease or cancel decisions when the undue influence and overriding interests of the Attorney-in-Fact collide with the original intent and best interests of the Principal.

Sample Power of Attorney

The following is language from a Power of Attorney by which a Parent Principal names her two daughters to act jointly as her Attorney-in-Fact:

KNOW ALL PERSONS BY THESE PRESENTS that I, Ms. Boniface Wright constitute, nominate and appoint my daughters, Big Sister Loyal and Baby Sister Wrong, jointly to act as my Attorney-in-Fact for me be my true and in my name, place and stead.

And I, the said, Ms. Boniface Wright do hereby ratify and confirm all whatsoever that my said Attorney-in-Fact or their substitute or substitutes, shall lawfully do, or cause to be done by virtue of this Power of Attorney.

This Power of Attorney shall not be affected by any future disability of mine.

Conferring the authority for someone else to act on your Attorney-in-Fact is an important decision. Prior to granting a “Yes, you can” response for someone to act as your Attorney-in-Fact, consider the following :

1. Is the person dependable, reliable and honest?
2. Is the person committed to promoting and protecting
your best interests in a timely and thorough
manner?
If the person is a family member, think about whether family members respect the person and decisions of your prospective Attorney-in-Fact. Additionally, make a honest assessment of how well the proposed Attorney-in-Fact “gets along” and communicates with other family members, business professionals and other interested parties.

After you ask yourself for the right person for the job, ask the person if he or she is willing to handle your affairs and make decisions that are best for your health, assets and wealth.

Mother, May I? : An Example

In 1999, Mrs. Fortune Wright, appointed her daughters, Big Sister Loyal and Baby Sister Wrong to serve together as her joint Power of Attorney. When Mrs. Wright signed the Power of Attorney in her lawyer’s presence, she was able to think clearly and make decisions easily. She was healthy in body.

Last week, Big Sister Wright and Baby Sister Wrong sent an e-mail to Lawyer Lisa Long, the attorney who prepared Mrs. Wright’s Power of Attorney and was present when Mrs. Wright signed the Power of Attorney.

Baby Sister Wrong who has “handled” most of her mother’s financial affairs has decided that she and her Big Sister Loyal should transfer title owned by their mother into the name of Big Sister Wrong for Property A and Baby Sister Wrong for Property B. In the alternative, The Wright Sisters have agreed to sell the properties and share the sales proceeds.

During a follow-telephone conversation with The Wright Sisters, Lawyer Long learns that Baby Sister Wrong has used a credit card issued in her mother’s name to make purchases in excess of $29,000. Baby Sister Wrong intends to “get a loan” against her Property to pay off the credit card debts.

Lawyer Long advises The Wright Sisters that their plan raises “conflict of interests” concerns. She requests the opportunity to meet with Mrs. Wright. Big Sister and Baby Sister do not want Lawyer Long to meet with Mrs. Wright.

Lawyer Long advises The Wright Sisters to “do the right thing” under their authority as the joint Attorney-in-Fact for their mother. She informs them that she originally represented their mother and recommends that they seek legal counsel separately if they choose to carry out their plan to transfer their mother’s property without her knowledge or consent.

No, You May Not

The Voice of Ethics and the Voice of the Law may give different answer to the plans of The Wright Sisters. The Voice of the Principal should govern the decisions of an Attorney-in-Fact. To hear the voice, the Attorney-in-Fact should take into account the Principal’s interests and the predictable impact of the planned transactions on the lifestyle, legacy and liberties of the Principal.

In the example detailed above, the Principal, Mrs. Wright, would probably respond “No, my daughters you may not take this giant step. You may take two steps back and consider the amount of influence you are exerting over my property and person. Think about me first and foremost and fully.”



Alison Velez Lane, Esquire is a member of the Maryland Bar. She is a Past President of the Maryland Alliance of Black Women Attorneys and Past Chair of the Young Lawyers Division of the of Bar Association of Baltimore City. You can contact her at AttorneyAlisonVelezLane@gmail.com or at 443-621-3668.