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Law Offices of Ronald W. Rutz
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July 6, 1999: Problems with Power of Attorney

Q: My friend gave me a durable power of attorney (including medical) but I ran into one frustration after another. The group hired to help him die came charging in like a 9000 pound gorilla and proved totally uncontrollable. The bank would not honor my power of attorney because it was too general. Then the nursing home did not even notify me when my friend died and sent his body to a funeral home with no authority. I also repeatedly had difficulties with that group too on a number of matters.

A: The problem was not with the Durable Powers of Attorney but the groups you were working with.

Although the group helping with your friend's death has had a good reputation in the past when compared to other local groups, I have heard an increasing number of complaints recently that parallel the old Arab proverb that you do not let the camel put its nose under the tent flap because soon the whole camel will be inside the tent. Hopefully that group will "chill out." Otherwise, remember that just as they were hired, they can be fired.

The bank problem is more philosophical. There are two schools of thought: have a laundry list of specific powers so the agent does not exceed his or her authority or have a general authority so the agent can use his or her judgment and discretion and is not "painted into a corner." The bank official probably belonged to the first school of thought but would have had to honor your authority if pushed hard enough, at least here in Colorado.

Finally, there is no excuse for what the nursing home did, although technically your authority under the durable power of attorney ended at your friend's death.

Each entity does not have the right to make its own determination when it comes to these matters. It seems that you ran into three entities that did not respect you. Next time have them follow your authority or use it to fire them. As an agent, you have the power, authority, and obligation to expect them to work for your friend through you.

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