When John Potter built his house in 1957, he never dreamed that nearly six decades later, someone would be trying to kick him out of it.
Yet that is the situation the 91-year-old widower is facing as his daughter, Janice Cottrill, aimed to evict him, after having secretly transferred the deed to the property to herself during a brief tenure as her parents' power of attorney (POA).
The Potters appointed Janice, their only daughter, as their POA in 2004. One of the couple's primary concerns was that their elderly son, who suffers from autism, would be properly taken care of, in the event that they themselves could no longer do so. It wasn't until 2010 that the Potter's learned she used her POA designation to conduct the clandestine real estate transaction.
They promptly switched POA to their granddaughter, Jaclyn Fraley, Janice's daughter, who is now helping her grandfather fight to remain in his home.
John won his initial suit to get his house back from Janice, but the ruling was later overturned in appeals, due to the statute of limitations that applied to undoing the property transfer.
After a few failed attempts to declare her father legally incompetent and sent to a nursing home, Janice served him with a notice that terminated his lease in February 2013, with a formal eviction hearing to be held on June 12th.
"The efforts of the family to convince Janice to allow John to live out his life in his home have failed," Fraley writes, "Janice states she needs the money, so the old man must go."
Being granted POA allows a person (usually a trusted friend of family member) to make legal, medical and financial decisions on behalf of an elder. It is widely considered advisable for aging adults to appoint a POA before their health begins to decline.
However, the issues surrounding POAs are complex and can thus be easily misunderstood, or exploited.
In the above situation, Janice initially used her POA to "gift" her parents' house to herself—a move that the court eventually deemed illegal, given the specifications of the document that granted her authority to make decisions based on her parents' behalf. However, since the statute of limitations for John to refute his daughter's claim on the property had already passed, Potter was unable to reclaim the deed to his house.
Gifts of property, assets and money are sometimes allowed in POA arrangements, if spelled out in the document ahead of time. And, there are a variety of protections that can be built in to an agreement, to protect an elder from potential abuse by their appointed POA.
An alternative to designating a financial POA is for a person to place their assets in a trust and appoint an individual (known as the "trustee") to manage those assets. POAs and trustees have similar decision-making authority.
A trust may be a safer alternative for some, since it's easier to hold a trustee liable for the decisions they make on an elder's behalf than it is to hold a POA responsible, according to Buckley Fricker, J.D., G.C.M., a geriatric care manager and president of Buckley's for Seniors, a companion care company for elders. "For anyone who has even the slightest doubt about who they are naming to be ‘in charge,' it is worth at least checking with an elder law attorney to see if a trust would be appropriate in their case," she says.
Trusts allow for very precise language about safeguarding an elder's assets. There are also state-specific laws that strictly regulate trusts, even those with ambiguous language.
In the case of John and his daughter Janice, for example, Fricker says that placing the deed of the house into a trust and then outlining the specific rules governing the handling of the deed might have prevented Janice from illegally seizing her father's house.
There's no one-size-fits-all approach when it comes to planning for an elder's future.
Caregivers tasked with helping an aging loved one make long-term care and end-of-life arrangements may benefit greatly from the input of an elder law attorney. These legal professionals can provide guidance on whether an elder would be better off appointing a trustee, or a POA to manage their assets; as well as a host of other legal issues.
Ultimately, the most important thing is to plan ahead, whenever possible. This means making sure that a loved one (and you, yourself) have prepared the following, must-have legal documents:
- HIPPA authorization
- Power of attorney (both medical and financial)
- Advanced Healthcare directive
- A Will
Without such safeguards in place, elders and their families could potentially be exposed to unnecessary strife when making important medical and financial decisions. For more information on each of these essential documents, consult our Money and Legal section.