Power of Attorney and Elder Abuse/Exploitation

The senior population faces a greater risk for infirmities due to illness, injury, and failing eyesight or hearing loss caused by the natural physiological changes of aging. Yet another more insidious harm facing many senior citizens is sometimes perpetuated by those close to the senior. Some family members have a Power Of Attorney drawn up by their attorney, and begin making decisions on behalf of the senior. Decisions that may not be in the best interest of the senior, but benefit the agent themselves. This is known as Elder Abuse and Exploitation, and it is unlawful. This abuse is performed through a misuse of authority by the agent, through actions such as unauthorized money withdraws or changes in the principal’s estate that benefit the agent but are not the wishes, nor in the best interest of the elder.

Sometimes the abuse also occurs through the fraudulent attainment of the Power Of Attorney document itself. In such instances, the elder may be presented with a pre-drafted Power Of Attorney, or Durable Power Of Attorney to sign without their knowledge of the contents or authority given in the document. Many times this is achieved through pressure, encouragement, or even threats that the elder won't receive care unless they sign. Power Of Attorney documents have been known to be witnessed and executed without ever verifying that the elder themselves actually signed the document; without the principal in attendance at the execution of this legal binding document. 

Once the Power Of Attorney is in the agent's hands, they now have the ability to take hold of many areas of the elder's life. Presenting the Power Of Attorney document to the principal’s bank, hospital, real-estate agent, assisted living facility, pharmacy, physician's office, etc., continually goes unquestioned: representatives at these facilities have been known to readily accept the POA document without hesitation, and perform all acts as instructed by the agent. To make matters worse, requests made by the elderly person themselves, are often denied, as if all his/her rights and autonomy have been taken away.

In the growing events such as these, it’s easy to see that the Power Of Attorney document is a very strong and powerful tool that gives the agent the authority to perform some serious actions that have the potential to harm another human. An elderly person can be intimidated, mislead, or pressured to sign a Power of Attorney document without even knowing the document’s contents, and sometimes made to sign additional items that go against their wishes. 

According to Nicole Le Hudson, an Elder Law attorney, and court-appointed panel member for the Superior Court Probate Division, “The perpetrator often uses manipulation to convince the older adult to make decisions contrary to his or her best interest” which includes POA documents (Le Hudson).

It is understandable that when an elder needs medical attention or a facility’s care, time can be of the essence. Medical staff and care givers readily accept Power of Attorney documents in good faith, to provide care to the elder without delay. The question is surrounding the validity of these POA documents, and whether the elder’s wishes are being upheld, especially in the cases of disagreement between the principal (elder) and the agent (family member). Power of Attorney documents can give important authority to act in the best interest of the principal in terms of proving prompt decisions for medical care and procedures, when the elder cannot make decisions for themselves, and in this way, can be a very useful instrument. It is understood that medical and facility staff may not have the time nor manpower to explore the verification of a POA.

There needs to be a process put into place that verifies the validity of these legal documents; something that will confirm the elder's wishes and their active involvement in the creation of the Power Of Attorney document, as well as their understanding of authority given to the agent.

Currently, there is no procedure in place to verify whether a Power of Attorney (POA) is authentic, or created by the principal (elder). By the time an abuse report is necessary, an elder may have already spent more time than required at a facility, or be subjected to lack of care at the direction of the agent who wishes to keep the elder confined. The longer the elder is abused and exploited, their personal finances may have suffered great damage through theft of funds and misappropriation of estate. “America’s seniors lose billions of dollars every year to fraud and financial scams, in many cases watching helplessly as their entire life savings disappear before their eyes,” (United) quotes Katharine T. Sullivan, Office of Justice Programs Principal Deputy Assistant Attorney General. Once abuse is finally detected and reported, the damage is often times extensive and irreparable. 

Once an investigation is underway, staff are launched to explore the suspicions, regularly performing facility staff interviews, visits to the elder, tracking down the agent, attending doctor consultations, and completing record evaluations. This multi-layered process is complex and lengthy, requiring the time and manpower of social workers, law enforcement, banking staff, physicians, facilities, and welfare staff.

A case investigation utilizes more than the Social Services case worker’s time, it requires an assessment team of several authorities. While agencies can remediate the abuse, cases that have a longer history of financial exploitation are at a disadvantage to recovering the elder’s losses. This reactionary method uses a large amount of time, staff, and funding to process these types of cases, resulting in an exhaustive strain on the economy. According to the World Health Organization, “If the proportion of elder abuse victims remains constant, the number of victims will increase rapidly due to population ageing, growing to 320 million victims by 2050” (World). In Florida, the Department of Elder Affairs reports, “With nearly 5.2 million residents age 60 and older” Florida “currently ranks first in the nation for the 65+ population” (Department). Taking this data into consideration, prevention is the key to minimizing the costs of investigation and occurrences of elder abuse and financial exploitation. 

But what is prevention? What is the State of Florida doing to prevent elder abuse and exploitation? Awareness and reporting are instrumental in stopping abuse once it has already occurred, but what we need-what our elders deserve-is a process that deters the unlawful activity before it is even attempted. We need to get ahead of the problem, and try a new method to actually prevent elder abuse. We need a deterrent: a system that discourages the unlawful behavior of abuse. A system that lets everyone know that legal documents to include Power Of Attorney and Durable Power Of Attorney documents for elder and seniors are being seen, read, and monitored, if necessary. 

As a resolution, we propose a procedure to verify POA documents, which doubles as a deterrence of crime by increasing the agent’s awareness to the high likelihood of apprehension. According to Daniel S. Nagin, a criminologist, statistician, and Professor of Public Policy and Statistics at Carnegie Mellon University's Heinz College, “the evidence amassed by perceptual deterrence researchers points overwhelmingly to the conclusion that behavior is influenced by sanction risk perceptions - those who perceive that sanctions are more certain or severe are less likely to commit crime” (Nagin). 

The use of a verification procedure for elder POA documents can help to decrease abuse and exploitation, resulting in less need for investigative services and law enforcement intervention. This can be achieved by the requirement that all Power Of Attorney or Durable Power Of Attorney documents are only executed with prior application made to and issued by the Clerk of Court, then filed into the governing county Clerk's database-much like a marriage license. In cases where an elder's rights or wishes are in questions, a Social Services staff member should visit and speak with the elder, one-on-one to ensure that the authority given through their POA is consistent with what they understood, agree to, and signed, thus ensuring no fraudulent measures were taken to execute the POA. Minimal space is required to store data, and all costs would be significantly less than an abuse investigation that launches multiple enforcement parties. 

Currently, in Florida, there is no requirement to share this very powerful and far reaching Power Of Attorney document with anyone. The new agent, given power to act for the elder, has a secret weapon that no court, law enforcement, nor Social Services staff is aware of. As far as the agent knows, they can do as they like and no one will be the wiser, and in the wrong hands, this can be devastating to the senior/elder. Only when someone reports abuse, will the agent ever be questioned. This is not a proactive measure: this is reactionary. The Power Of Attorney has been referred to as "a license to steal" with good reason. 

With the passage of Congress House Bill 1041, Protection of Elderly Persons and Disabled Adults by the State of Florida’s State Attorney General’s Office, this POA verification program can easily fit into the bill’s goals. In terms of funding, The United States Department of Justice’s Office for Victims of Crime’s recent near $2 million award could provide for the formation of a new POA Verification program with minimal staffing per region. According to the Office of Justice Programs, “These funds have been awarded for law enforcement training and technical assistance to improve the identification of elder fraud victims and connect victims to available resources” (United). This new POA Verification/application process is well in line with these efforts to safeguard our elders. The idea is not only to 'identify' and 'report', but to PREVENT.

Instead of deploying large multi-layer investigative teams in a reactionary manner, we instead, formulate a proactive measure to act as a crime deterrent. As reported through the studies by Daniel S. Nagin, it is not the penalty’s severity that reduces crime, but the higher likelihood of apprehension that acts as a crime deterrent. Potential criminals are less likely to perform a crime when they know their actions are being monitored, and that their chances of being caught are greater. By establishing contact directly to our elder population once a POA is in question, and making our presence known to the agent, this will reduce the likelihood of elder abuse and financial exploitation to ever occur.

Please sign this petition to help end the exhaustive occurrences, and elaborate damage sustained through the abuse to our elders. We are preparing a proposal to Florida Senate regarding Elder Abuse and Exploitation, and aim to see the verification process implemented into current law. 

Thank you very much for your help in protecting our elders and seniors, and thank you for signing this important petition.

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If you suspect or have knowledge of Eder Abuse and/or Elder Exploitation, please contact below to report online or by phone:

To report online – go to the DCF web site at https://www.myflfamilies.com/service-programs/abuse-hotline/report-online.shtml

To report by phone – call Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873). Press 2 to report suspected abuse, neglect or exploitation of a vulnerable adult. This toll free number is available 24/7. TTY (Telephone Device for the Deaf): 1-800-955-8771. To report via fax, please print and complete the DCF fax reporting form with details and fax to 1-800-914-0004.

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Department of Elder Affairs, State of Florida. “Seniors In Florida.” 2017 Fact Sheet, 23 July 2021, https://www.flgov.com/wp-content/uploads/childadvocacy/DOEA_Fact_Sheet.pdf

Le Hudson, Nicole. “Advocating for Elders Suffering Financial Abuse and Exploitation.” GPSolo, vol. 32, no. 6, Nov. 2015, pp. 18–21. EBSCOhost, search-ebscohost-com.ezvwcc.vccs.edu/login.aspx?direct=true&db=a9h&AN=111456711&site=ehost-live&scope=site.

Nagin, Daniel S. “Deterrence in the Twenty-First Century.” Crime and Justice, vol. 42, no. 1, 2013, pp. 199–263. JSTOR, www.jstor.org/stable/10.1086/670398 

United States Department of Justice. “Office for Victims of Crime Awards Nearly $2 Million to Respond to Elder Fraud.” Justice News, 15 June 2020. https://www.justice.gov/opa/pr/office-victims-crime-awards-nearly-2-million-respond-elder-fraud

World Health Organization. “Elder Abuse.” Scope of the Problem, 15 June 2021

https://www.who.int/news-room/fact-sheets/detail/elder-abuse