When 81-year-old Helen Janssen's nursing home fell three months in arrears she discovered that Helen's daughter-in-law Connie, who together with Connie's husband James held power of attorney over the elderly woman's affairs, had written checks against Helen's bank account ostensibly for the nursing home resident's care and personal needs. In reality, however, Connie had transferred the funds to the bank account she herself shared with James.
Connie was charged with abusing a vulnerable adult by exploitation or denial of essential services. At trial, Peggy Kupfer, the nurse manager of Helen's unit at the home, testified that during the period in question, Helen was not oriented as to time and place and could not live alone or carry on an intelligent conversation. In Connie's testimony, the defendant conceded that Helen "needed supervised care," but stated that she and James had merely "borrowed" money from Helen to invest, for Helen's benefit, in a business venture that ultimately failed. Bergman testified that Helen was not "kicked out of the nursing home" or denied any essential services.
Convicted and sentenced to two to four years of incarceration, Connie appealed.
Holding: The Court of Appeals of Nebraska reversed the conviction and remanded the matter for a new trial. The Court held that Kupfer's testimony alone was sufficient to support a finding that Helen was a vulnerable adult. Moreover, the evidence that Connie took Helen's money clearly supported a verdict of exploitation.
However, the trial court prejudiced the defendant when it instructed the jury on the denial of essential services. Under the governing statute, such denial requires "actual physical injury to a vulnerable adult or imminent danger of the vulnerable adult suffering physical injury or death." Yet in the instant case, there was no evidence that Helen suffered or would suffer any physical injury for nonpayment of her nursing home debt.
Citing State v. Adams, 251 Neb. 461, which overturned a drug conviction for lack of evidence to permit a jury instruction, the Court concluded that the "denial of essential services" instruction constituted a plain error warranting reversal.
 | Jeremy Robin, J.D. Attorney |
Mr. Robin comments: The defendant, charged with "abuse of a vulnerable adult," clearly violated her fiduciary responsibility to the elder individual if there is truth to the allegations. The alleged conduct, however, raises the significant dilemma inherent when an elder creates the document known as a durable power of attorney ("DPA").
Basically, a DPA is a simple instrument in which the creator grants broad discretionary powers to another person, his or her attorney-in-fact. The DPA relieves the elder of many decision-making burdens. The attorney-in-fact may exercise such functions as selling a business, investing in securities, allocating or spending the creator's assets, transferring real estate or otherwise making financial decisions. These powers transcend any period during which the creator may be physically or mentally incompetent; thus the word "durable."
In most circumstances, an elder will name a trusted son or daughter to serve in this capacity. Accordingly, the attorney-in-fact will make logical and thoughtful decisions on the elder's behalf. Nonetheless, as the allegations in Janssen suggest, abuse may arise in exceptional cases. Given the relatively unchecked powers of the attorney-in-fact, any unethical conduct on his or her part may provide tangible opportunities for self-aggrandizement at the unfortunate expense of the elder.
What should the elder do where there is no reliable family member, yet he or she requires assistance in making financial decisions or winding down an estate? There are two common options. Beginning with the less viable, the elder may do nothing. Absent a DPA, if the elder becomes incompetent or otherwise requires that decisions be made regarding his or her estate, a court of competent jurisdiction may appoint a conservator to serve as the elder's attorney-in-fact. The problem here is that this process is time-consuming, and the significant costs involved must be covered by the elder.
The more viable alternative, I believe, is to create an institutional co-attorney-in-fact. Where an. institution, such as a bank or a brokerage house, shares attorney-in-fact responsibilities with a relative or friend, the chances of abuse significantly dwindle. All dispositive decisions must be supported by both attorneys. Accordingly, if the relative or friend exhibits proverbial delusions of grandeur, such as those alleged in Janssen, the institutional attorney may immediately snuff out such intentions. One drawback, of course, is that unanimity is required. Additionally, the added financial constraint of paying a bank to serve in this capacity may act as a deterrent.
In short, judicious estate planning and awareness of options may effectively prevent opportunities for unconscionable abuse.
