Abuse of Power: Guardians and Powers of Attorney
It’s often difficult to give control over to someone else. That can be especially true when it comes to our loved ones.
Siblings can feel resentment, for instance, if they weren’t chosen to oversee their parent’s health care. You may feel guilty that you cannot step in to be your elderly aunt’s guardian.
These situations are worsened when the person in authority abuses their power. And it’s your loved one who bears the brunt of the exploitation.
We know that your loved one’s safety and health are important to you. There are legal remedies to help your loved one when there is evidence of abuse of power.
Robinson & Henry, P.C. Can Help Schedule a consultation at (720) 797-1191.
An Overreaching Medical Power of Attorney
There may have been a time when it was tough to fathom your loved one could be anything but a strong, healthy, and independent person. For others, you’ve always known there would come a day when someone else would need to take over for a family member.
Your loved one, knowing they could be temporarily or permanently incapacitated, from an accident or a progressive illness, created a medical power of attorney. They appointed someone to carry out their healthcare wishes and make treatment decisions on their behalf in the event they could not speak for themselves.
This powerful legal document gave someone else the authority to make medical decisions for your loved one.
The principal – the individual who creates the power of attorney The agent – the person given control over the principal’s affairs
Agents are often family members or close friends. They may have some or all control over your loved one’s medical matters.
In Colorado, a medical power of attorney can cover routine and long-term care, not just end of life decisions. An agent can make decisions about surgery, treatment, or extended care.
Typically, doctor’s turn to the principal for their input about care if they’re capable of providing informed consent.
“No agent may consent to or refuse medical treatment for a principal over the principal’s objection.”
Many agents are caring, responsible individuals who want to fulfill their loved one’s wishes and ensure they receive proper care. However, some agents abuse their power.
The abuse of power can be unintentional. An agent may believe they’re acting in the best interest of the principal. Other times, an agent deliberately takes advantage of the influence they have to further their own agenda.
Example: An agent declines a particular treatment knowing it could improve the principal’s condition.
Example: An agent refuses to discontinue life support despite previous directives from the principal.
Example: An agent keeps a debilitated principal in their home despite their needing round-the-clock care from a nursing facility.
Agents have a legal duty to act in the best interest of the principal.
Robinson & Henry’s probate litigation attorneys can help you sort through this troubling matter to reach a resolution that gives you peace of mind and protects your loved one.
Actions to Challenge Potential Abuse of Power
If you have access to the power of attorney document, have one of our probate attorneys review it to ensure it is a legal document.
If you believe your loved one’s agent is abusing their power, you have a number of options.
If your loved one is in immediate need, our attorneys can discuss the most appropriate action to take.
Ask Agent to Step Down – If your loved one’s agent is abusing their power, they may be more inclined to resign their position than go before a court. You can make this request yourself, or you can have your attorney do it. If there is a contentious situation between yourself and the agent, the request may have a greater effect coming from a lawyer.
Express Concerns to Principal – If the principal is mentally competent, you can express your concerns about the agent’s actions, or lack thereof. A principal who is of sound mind can revoke a power of attorney at any time.
Petition Court for Help –A court can remove an agent if it believes they are not acting in the best interest of the principal. Judges take seriously revoking a power of attorney, and they require sufficient evidence of abuse of power.
Removing an Agent through Probate Court
If going to court becomes your only option, one of our probate attorneys can walk you through the process.
This can be a challenging process, so you will want the expertise of a knowledgeable probate litigator.
Here’s a general overview of the removal process:
Petition filed with probate court
Motion for discovery requested
Your attorney will need to have proof of abuse of power to the court. Some of this evidence may come from documents that only the agent possesses. A judge can compel the agent to release any records to you or your attorney to substantiate your claims of abuse of power.
Court hearing
The judge revoked the agent. Now what?
If an agent is removed from their position, and your loved one did not name an alternate in the power of attorney document, a guardian has to be appointed.
Generally, when an individual petitions to remove an agent, they make an additional request at the same time for a guardianship to be approved. The judge can accept the nominated guardian, or he or she can appoint another individual for the role.
What if the judge denies my petition?
Like you, a judge wants what is in the best interest for your loved one. The court will base its decision on what it believes is right for the principal.
You have a couple of options when the court rejects your request:
Appeal to a higher court.
Petition to be your loved one’s guardian.
Mixing Guardianships and Medical Powers of Attorney
While your loved one can have an agent and a guardian at the same time, obtaining the guardianship will not necessarily resolve the power struggle.
Let’s begin with the good news…
According to Colorado law, if a court appoints a guardian for your loved one, the agent must consult with the guardian about the principal’s personal care.
“If a guardian or conservator thereafter is appointed for the principal, the attorney-in-fact or agent, during the continuance of the appointment, shall consult with the guardian on matters concerning the principal’s personal care or account to the conservator on matters concerning the principal’s financial affairs.”
C.R.S. § 15-14-501
Personal care does not equate to medical care, though.
Now, the not-so-good news…
When a guardianship is created and a medical power of attorney exists, the agent’s decisions about the principal’s medical care take precedence over the guardian – unless the court orders that the guardian has the power to make those choices.
A court can also allow a guardian to revoke an agent. Again, this is at the court’s discretion.
“A guardian, without authorization of the court, may not revoke a medical durable power of attorney made pursuant to section 15-14-506 of which the ward is the principal.
If a medical durable power of attorney made pursuant to section 15-14-506 is in effect, absent an order of the court to the contrary, a health-care decision of the agent takes precedence over that of a guardian.”
C.R.S. § 15-14-316
You need a strong case to have an agent removed from their position or to place all decision-making power in the hands of the guardian.
The probate litigators at Robinson & Henry may be able to help you develop a convincing case.
Schedule a consultation at (720) 797-1191.
When Guardians are Out-of-Control
Guardianships are often appointed for vulnerable people who cannot care for themselves: incapacitated elderly individuals, children without parents, and adults with developmental or physical disabilities.
In Colorado, guardians are approved to oversee their ward’s day-to-day needs. The guardian is responsible for providing the ward food and clothing, a safe place to live, and access to medical care education.
Guardians are often family members. When a proposed ward has no relatives who can step in to the role, a court will appoint a guardian who is not related to the ward.
Because adult guardianships severely limit a ward’s liberties, courts are careful to award them.
Read more about Colorado guardianships here.
Colorado law calls for a guardian to have only as much authority as necessary to care for an incapacitated adult unless a judge is convinced there’s a need for the guardian to have unlimited authority. C.R.S. 15-14-314
When a guardian has unlimited power, they’re more likely to misuse their power.
Room for Abuse
Abuse of power may increase over time, or it can happen immediately.
When you your family member, the guardian may say they are sleeping, preventing you from talking to them. It may be suggested that you not visit your loved one because you upset them, even though there is no evidence of that.
Abuse of power could be anything from not giving your loved one your packages to lying about your loved one’s whereabouts or health.
These kinds of acts are often done to detach the ward from family and friends for various reasons, many times it is related to tensions between the family and guardian.
The National Association to Stop Guardian Abuse, a victims’ rights group, reports the top complaint is guardians isolating elderly adults from loved ones.
Actions to Challenge Guardianships
While most guardianships are considered “limited” in nature, they most often are permanent arrangements, ending only when the ward passes away. Once the guardianship is in place, it can be difficult to remove it.
Taking your claim to court is the only way to remove a guardian’s oversight.
Colorado law allows a judge to restrict or remove a guardian’s powers if its in the best interest of the ward. C.R.S.A. § 15-10-503
Emergency Situations – If a guardian’s actions pose an imminent risk to a ward’s welfare, a court can restrain or suspend the guardian’s powers without a hearing. However, a formal hearing date will be set to determine whether the guardianship will be permanently revoked. A judge can also permanently restrict a guardian’s powers.
Non-emergency Situations – When it is not a dire situation, a hearing will be set to allow all interested parties, including the guardian, to submit evidence to the court.
A judge can name a temporary substitute guardian if the guardian is not acting in the best interest of the ward. The temporary substitute guardianship can be effective for six months.
The court can extend the guardianship until a full hearing can be conducted.
(1) If the court finds that a guardian is not effectively performing the guardian’s duties and that the welfare of the ward requires immediate action, it may appoint a temporary substitute guardian for the ward for a specified period not exceeding six months. Except as otherwise ordered by the court,
a temporary substitute guardian so appointed has the powers set forth in the previous order of appointment.
The authority of any unlimited or limited guardian previously appointed by the court is suspended as long as a temporary substitute guardian has authority. If an appointment is made without previous notice to the ward, the affected guardian, and other interested persons, the temporary substitute guardian, within five days after the appointment, shall inform them of the appointment.
(2) The court may remove a temporary substitute guardian or modify the powers granted at any time. A temporary substitute guardian shall make any report the court requires. In other respects, the provisions of parts 1 to 4 of this article concerning guardians apply to a temporary substitute guardian.
C.R.S.A. § 15-14-313
We know it is incredibly difficult to be legally kept from your loved one, or to know that your loved one is not getting the proper care they need. Our attorneys can help you devise the best plan of action to ensure the right person is caring for your loved one.
Robinson & Henry, P.C. can help. Schedule some time to speak with our probate litigators. (720) 797-1191.
Red Flags of Abuse of Power
Medical agents and guardians are generally less inclined to abuse their power than an agent who oversees your loved one’s money. Nevertheless, we hear of many cases of potential abuse of power.
Abuse can begin just weeks after an agent takes control, especially if there is a volatile relationship between the agent and the rest of the principal’s family or friends. Sometimes, abuse of power happens over time.
Here are some warning signs of possible abuse of power:
Sudden change in living arrangements
Your loved one is unexpectedly moved into a nursing home or removed from a care facility.
Abrupt changes to treatment or medication
Your loved one appears excessively drowsy or their health has rapidly declined.
Isolated from your loved one
The agent is keeping you from your loved one, and there is no reasonable explanation for it.
Secrecy by the agent
The agent refuses to provide information about your loved one’s wellbeing or whereabouts.
Changes to your loved one’s will
A medical agent has influenced your loved one to revise their will.
