# Question 77: The Power of Attorney, the Transfer, and the Capacity Crisis

## Your role

You counsel Eleanor Vale, age 79, and her family during a capacity and financial-control crisis. Determine the least restrictive lawful path, the immediate protection needed for Eleanor's assets, and whether full guardianship is justified.

## Governing law

Assume the following elder-law rules apply:

1. An adult is presumed capable. Capacity is decision-specific and may fluctuate. A diagnosis, age, or temporary delirium does not by itself establish inability to make every personal or financial decision.

2. A springing financial power of attorney becomes effective when the certification required by the instrument is made. The agent then owes duties of loyalty, care, recordkeeping, and obedience to the instrument.

3. An agent may not make gifts, loans to the agent, or self-dealing transfers unless the power expressly authorizes them. A court may order an accounting, suspend or remove the agent, and restore property.

4. A health-care proxy authorizes medical decisions within its terms. It does not authorize financial control, placement, or sale of property merely because the same person is a family member.

5. A full guardian or conservator may be appointed only on clear and convincing evidence that the person cannot manage essential personal or financial affairs and that less restrictive alternatives are unavailable or inadequate.

6. Less restrictive alternatives include supported decision-making, automatic bill payment, limited account authority, a trustworthy agent, a representative payee, a limited conservator, and protective orders directed to a particular asset or transaction.

7. An emergency temporary conservator may be appointed for no more than 30 days when immediate and substantial financial harm is probable. Authority must be limited to the emergency.

8. The court must consider the adult's current wishes, values, home preference, available supports, and ability to understand the specific decision with assistance.

9. A capacity evaluation should occur after reasonably reversible conditions are treated when delay does not expose the person to immediate harm. Interim protection may be used while reassessment occurs.

10. Counsel for the adult represents the adult, not the competing relatives, and should communicate in a manner that maximizes the adult's participation.

## Facts

Eleanor lives in her own home. She was hospitalized with a urinary infection and delirium three weeks ago. Her cognition has improved since treatment. At a meeting yesterday she accurately described her monthly income, mortgage, medication schedule, and desire to remain at home. She became confused when asked to explain a complex investment account and could not remember two recent withdrawals.

Eleanor signed a financial power of attorney in 2019 naming her son, Marcus. It becomes effective upon one physician's written finding that Eleanor is unable to manage financial affairs. It authorizes ordinary banking and property management but expressly prohibits gifts, loans to the agent, and self-dealing.

During hospitalization, a physician wrote:

> “Eleanor temporarily lacks capacity for complex financial management during delirium. Reassess 30 days after infection treatment.”

Marcus used the certification to access her accounts. He transferred $85,000 to his own limited-liability company, describing it as a loan for “home renovation planning.” No renovation contract exists. He has not supplied an accounting.

Eleanor's daughter, Nina, holds a health-care proxy effective when Eleanor cannot make a particular medical decision. Nina asks the court for full guardianship, authority to sell the home, and immediate placement in assisted living. Eleanor opposes sale and placement. She accepts help paying bills, wants an independent accountant to review investments, and asks that Marcus no longer control her money.

The bank froze Eleanor's accounts after detecting the $85,000 transfer. Her mortgage and home-care payroll are due in 12 days. The bank will honor a court order or instructions from a valid replacement fiduciary. A geriatric specialist can perform a decision-specific reassessment in 14 days.

Marcus says the transfer was authorized because the power permits property management. Nina says the physician's note proves Eleanor lacks all capacity. Both ask you to “pick a side.”

## Assignment

Counsel Eleanor on:

* Her current decision-specific capacity and the effect of temporary delirium.
* Activation and scope of the springing power of attorney.
* Marcus's $85,000 transfer, accounting duty, and continued authority.
* Nina's health-care proxy and requested financial and placement powers.
* Immediate protection before the mortgage and payroll deadlines.
* The geriatric reassessment.
* Supported decision-making, replacement agency, limited conservatorship, and emergency relief.
* Whether full guardianship is justified now.
* Asset recovery and family-conflict management.
* The concrete least restrictive sequence for the next 14 and 30 days.

---

---