When Is It Unworkable For an Attorney-In-Fact To Assist an Elder Person?

An attorney-in-fact ("AIF") is the agent of his principal.  For example, if a mother asks her son to serve as her AIF under a durable power of attorney, the son becomes his mother’s agent and she becomes his principal.  Agents have only such authority to act as is given to the AIF by her principal.  Under normal circumstances, a principal under a durable power of attorney gives to her agent power to act on the principal’s behalf with respect to her property and her medical needs.  The power of attorney is “durable” if the powers granted continue even though the principal becomes disabled and unable for a time to give her attorney-in-fact instructions.  RCW 11.94.010.

The progressive symptoms of dementia, some mental illnesses, and other diseases may impair the judgment of their victims to the extent they require assistance.  Some older persons also become unaccountably irascible (as are we all some days).  A principal, thus afflicted, may, when contradicted or redirected by her attorney-in-fact, revoke the powers of her attorney-in-fact.  After having done so, the attorney-in-fact has no authority to act on behalf of his principal, and must cease doing so.  This revocation may be extremely unwise.

For the well-being of an elder, therefore, it becomes critical to smooth the elder’s transition through these confused times by good humor, patience, and quiet persistence.  When an elder loses more and more control over his life, he will at some point attempt to retrieve full control from the forces of the universe arrayed against him, asserting himself against all perceived opponents.  In my experience, waiting quietly on the sideline can be a constructive strategy.  When the elder creates problems by his recaptured independence, one can step back into the breach.

If an assertive incapacitated elder persists in activities that endanger himself financially or physically, or endangers others, it may prove necessary to seek guardianship with respect to that elder.  In my view, guardianships should be avoided except in the most extreme circumstances.  Guardianships, in many cases, render elders non-players in their own futures.  The elder’s civil rights are truncated.  Guardianship can prove demeaning to an elder.  In the best circumstances, a family can move seamlessly into place as guardian, and the elder barely notices.  Unfortunately, the best circumstances are not all that common.

One should seek less restrictive alternatives to guardianship.  The primary approach to less restrictive alternatives than guardianship for an elder’s care is a compassionate attorney-in-fact acting under a well-drafted durable power of attorney.