This column first appeared in the San Antonio Express News and other Hearst Newspapers on January 14, 2019.
Dear Mr. Premack: Since 2013 I have been the agent for my uncle, who lives in Texas, under both his Financial and Medical Powers of Attorneys. I live in Mississippi. My uncle had to move to an assisted living place in 2018 and a friend of his just emailed me that after moving into the assisted living place, someone there put a form under his nose and had my uncle sign the different Financial Power of Attorney, without asking if he already had one. Apparently, it is a form offered on some website - and it doesn't allow me to do everything the original 2013 Power of Attorney (the one his attorney wrote) let me do. I need to take action on some issues. Can this un-requested replacement form just be dismissed? – MM
Your uncle has done advance legal planning with a qualified attorney. The fact that he has moved to assisted living indicates that he may be slowing down and needing, well… assistance. His assisted living facility is there to help keep him safe, feed him, and perhaps help with his medications. They are not lawyers, nor are they legally authorized to provide legal services.
Facilities which care for seniors often, unfortunately, overstep their authorized legal boundaries. In doing so, they can create great harm. It is true that these facilities have the need to know about any Powers of Attorney a resident may have signed. They need to know who will act as Agent for the resident if the resident becomes too ill or confused to make decisions. As such, it is entirely appropriate for them to ask the resident about existing Powers of Attorney – both Medical and Financial – which have been signed by the resident.
It is not legal, however, for the facility to provide any legal assistance. It is not legal for them to provide blank forms. If the resident does not have Powers of Attorney, the facility should ask if the resident has a lawyer and suggest that the resident meet with that lawyer. The facility should never help a resident complete legal forms, because doing so is illegal unauthorized practice of law. Even Advance Medical Directives can only be completed by 1) the resident, 2) a qualified benefits counselor at any Area Agency on Aging, or 3) by the resident’s attorney.
It is even more egregious when the facility provides forms that revoke the resident’s already-existing attorney-prepared legal Powers of Attorney. Doing so interferes with the resident’s long-term plans at a time when the resident may be vulnerable. Such a practice is exploitative and abusive, in addition to being illegal unauthorized practice of law.
The un-requested replacement form they foisted on your uncle cannot simply be ignored. It will have inappropriately revoked the correct, proper, and legal documents your uncle already prepared with his lawyer. Those correct documents cannot legally be restored by ignoring the un-requested replacement forms. Your uncle will need to go back to his lawyer for a consultation, advice, and preparation of new legal documents which fully meet his needs.
You should make a complaint to the manager of the facility, make a report to the Texas Committee on Unauthorized Practice of Law, and should tell the facility that they will need to foot the bill for replacing the bogus harmful forms they enabled. The resident (your uncle) will need to go back to his lawyer to re-issue the correct, proper, and legal documents which he had before the facility illegally interfered. As this will take the lawyer’s time, the facility should pay for those fees to apologize to your uncle for interfering in his long-established legal plans.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.