Sunday morning I settled down to read the New York Times Magazine. I had earlier read "Garfield" in the Cape Cod Times, which is a priority, you will agree.
The first seventeen pages were routine - then I reached the column of "The Ethicist" on page 18. There the author answered questions about durable powers of attorney, and got it terribly wrong.
The Ethicist introduced a woman who wrote that her 82-year-old father had given her sister a power of attorney. Recently the father had made plans to marry a woman of 63.
The bride-to-be had financial problems and played slot machines. The sisters had ventured across the country to visit the prospective bride, who had refused to meet them.
To protect their father, the correspondent wrote, the sister "recently seized my father's assets." The father relented and promised not to marry his girlfriend. The correspondent asked whether she and her sister should return their father's money to him, "or would that be setting him up to be fleeced?"
The Ethicist suggested that the sisters return their father's money. The Ethicist apparently thought that the sisters had the legal right to control their father's finances, and that is where the Ethicist ran off the rails.
The sisters did not have the right to do what they did. An agent under a power of attorney must act only when, because of physical or mental incompetence, the principal cannot, and then must exercise the judgment that the principal (the person granting the power) would have exercised if he or she could do so.
If a person is not incompetent he can do whatever he wishes with his assets, and the person holding a power of attorney has no right to interfere in any way with what he does. If, and only if, he becomes incompetent, an agent under a durable power of attorney may act for him - until then if he wishes to spend his money on a younger woman, that certainly is a path that many men have trodden before, and he has a right to go there. More power to him, I say!
You can find my response to The Ethicist on our website, Haddletonlaw.com.
