Elderly gentleman driving a car

This is the first article in a two-part series. 

A recent advice column struck alarm bells. 

The advice-seeker had given up driving with his wife’s support. He regretted it and wanted to take a course to regain his skills. His wife was opposed. 

The columnist wrote that she understood why his wife was reluctant to “allow” him to resume driving. 

Allow? What, or who, gave his wife the power to dictate to him? Why would the columnist assume that a spouse or relative could legally do that? 

Unfortunately, that assumption springs from what has become a societal norm. It is so ingrained that you would not question it unless it affected you personally.

If you are a senior, then it is about to affect you personally. You should question everything.  

  • What, for example, gives someone the legal authority to sign you into a memory care unit against your wishes? 
  • What gives the memory care employees the power to keep you there?
  • What gives someone the right to sell your house or belongings against your wishes? 
  • What gives someone the authority to screen callers or isolate you from relatives or friends?
  • What gives someone the right to mandate that you cannot be allowed visitors while in a hospital or rehab facility? 
  • What gives someone the power to decree that you cannot drink wine or bourbon? 
  • What gives someone the authority to place cameras in your home and monitor your actions? 

Alarmed? These things happen every day. They are the result of a power grab, greed, desperation, or a gross misunderstanding of legal roles. 

Common Elder Guardianship Ploys

The first is stating that they hold an elder’s power of attorney, and therefore have the right to make all decisions. 

These people are flat-out wrong. If you sign a power of attorney, then you are giving your agent authority to take certain actions on your behalf. The agent is subordinate to you and owes you a fiduciary duty. You remain the boss. You are not giving up your rights. Your agent cannot act against your wishes. Your agent cannot force you to stay in a memory care unit. Your agent cannot sign a piece of paper that authorizes a memory care employee to prevent you from leaving. Your agent cannot take away your booze.

You can fire your agent at any time. There are 2 kinds of powers of attorney, and each requires a different action. For a durable financial power of attorney, you must fire your agent in writing. For a medical power of attorney, you can fire your agent in writing or verbally. 

Another common ploy to justify authority is to play the “caring relative” card. This is usually done by a spouse or child, although second- cousins and stepchildren have been known to get in the game.   

This ploy is normally used in medical or personal decisions. It won’t work in most financial transactions because bankers and the like require a writing such as a financial power of attorney. 

Memory care companies, nursing homes and home health care agencies aren’t as picky. They don’t have the motivation to track down the legal niceties. That leaves all sorts of room for a relative to seize control behind your back. Everyone involved is wrong. False imprisonment, fraud and theft come to mind.

You have the same rights now as you did when you were 25 years old. Age does not take those away. The word “allow” should never be part of the conversation. 

Would someone please tell the advice columnists?

Hammerle Finley Can Help With Your Legal Needs

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Attorney Virginia Hammerle, of Hammerle Finley Law Firm, is in her fifth decade of law practice. She is Board Certified in Civil Trial Law and an Accredited Estate Planner. Reach her at legaltalktexas@hammerle.com. This column does not constitute legal advice.