It's Not Ok, Boomer: Preventing Financial Power-of-Attorney Abuse of Elders

Genevieve Mann

Most people hope they will never need another person to step in and make financial decisions for them if they become “incapacitated.” Just ask Britney Spears. Yet many execute a power of attorney to protect their assets in case it happens to them. The power of attorney has become the universal financial management tool to prepare for future incapacity, preferred because it allows loved ones to effortlessly assist an elder with diminishing capacity. Unfortunately, along with ease of use, comes ease of abuse. Too often this ubiquitous instrument is used to misappropriate an elder’s property or usurp their autonomy due to a lack of oversight.

The rate of elder financial exploitation continues to rise as the U.S. population ages. The COVID-19 pandemic also exacerbated isolation and vulnerability for our elders. Nevertheless, the legal profession steadfastly holds its grip on the power of attorney as a utility instrument—despite the high risk. The academic conversation too narrowly focuses on a polarized choice: Either keeping powers of attorney unregulated and unsupervised or opting for an overly restrictive regulatory process. Rather than adhering to this false dichotomy, a better approach is creating a legal framework to address the increasing number of elders exploited at the hands of unscrupulous individuals.

This Article posits that the rise in elder financial exploitation due to power-of-attorney abuse demands a more robust and creative framework. The federal legislative response has been anemic; despite passage of the Elder Justice Act, which established a collaborative approach to protective services, the mandate has remained woefully underfunded. To prevent elder financial exploitation, a multi-disciplinary infrastructure should be bolstered with necessary oversight and protection measures. In particular, the model should be enhanced with agent supervision and a centralized power-of- attorney registry to increase detection and prevention, while not overburdening agents or elders. It is no longer adequate to allow unregulated power-of-attorney use while a growing number of elders remain at risk.