Family Fighting Over Powers of Attorney…

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Family Fighting Over Powers of Attorney…

FAMILY FIGHTING OVER POWERS OF ATTORNEY

Squabbles over who can act on your parent’s behalf through a Power of Attorney and the decisions made in that role can cause problems within any family.

Even when mom or dad plans ahead and creates the Power of Attorney (POA) legal document before they’re impaired by a health condition, there can be ongoing strife among family members.

Sometimes the decision of who to appoint in the Power of Attorney role, from the parent’s standpoint, is very clear and easily made. Parents will put their faith in the oldest child, or choose one child over another based on who lives closest or whom they trust because of their skills, especially with financial decisions.

In my own practice, I often see years of responsible living by one child making all the difference when it comes down to deciding who should be in charge.

In other cases, a parent is suspicious about their child and doesn’t trust them 100 percent with their money. Sometimes if the oldest isn’t chosen, there’s emotional backlash toward parents and siblings because they are insulted by the decision.

In Missouri., multiple people can be appointed Power of Attorney.  The downside to selecting multiple people is that can result in arguments later, if they cannot agree on a decision.  Luckily in Missouri, we allow separate Powers of Attorney for healthcare and financial decisions, so the duties can be separated between siblings.

In some families, having a child in the healthcare field as a doctor or nurse makes it very easy to decide who should be in charge for healthcare decisions in a power of attorney.  The same is true for families with a child who is an accountant or financial advisor.  They make easy selections for who should be in charge for financial decisions in a power of attorney.

Be aware, however, that even if the appointment of POA is smooth and didn’t involve much gnashing of teeth, that doesn’t mean bickering won’t begin once the person granted POA assumes duties related to parents’ financial and medical decisions. Many times, the challenge to the POA happens after the parent passes away, when transactions and other decisions by the POA are second guessed by the other children.

While the parent is still alive, a sibling may try to trump the person appointed POA by saying their parent was incapacitated when making the decision. When that happens, it can result in an expensive guardianship fight in court.

Here are other common situations seen by elder law attorneys:

“The Sibling Rivalry” : An ongoing sibling rivalry can chip away at the “power” that someone granted Power of Attorney holds and cause kids to argue over daily and long-term decisions. When the siblings don’t trust the person granted POA, what I see most often  is constant questioning about decisions. One or multiple siblings may appear to be always on the POA holder’s back, challenging each health care and financial decision.

“Unwilling To Let Go” :  The POA holder must act in the best interest of the person they are representing, even when it comes to making those tough health decisions.  If not, they can be sued.  Having handled these types of cases on both sides, they can be nasty, protracted and expensive.

“Financial Feuds” :  Once siblings start to question what is happening to their ineritance, the battle over finances heads to court, and it can happen whether the parent is alive or has died.

In a frequent scenario, the person appointed POA may decide to pay themselves back for the expenses of caring for a parent, such as driving them to doctor’s appointments and buying food or medications.

In one case I had when I practiced in New Jersey, the only daughter was appointed POA and took care of her mother for years, even as her health sharply declined.  Two brothers, who lived out of state, questioned everything she did, although it was very clear that Mom had decided to reward her daughter in her estate plan by giving her a large share of the estate.  The brothers were incensed but it was clear that years of neglect by her sons had upset her and that she recognized that her daughter going above and beyond and the sacrifices she made for years in taking care of her and making sure her every need was met.

One recommendation I make to clients is that they contact an attorney before the damage within these families becomes permanent.  Often an attorney can act as a buffer between the two sides and bring everyone together.   This not only may salvage the long term relations among family members, but save a lot of emotional turmoil and hurt feelings.