Home > スタッフブログ新着一覧 > Durable Power of Attorney (DPOA)

Alternatives To Guardian

Durable Power of Attorney (DPOA)

Alternatives To Guardian,  English Blog   2022/08/09 (火)  3:53 PM

       In the United States, there are two types of durable power of attorney: financial durable power of attorney  (hereinafter referred to as DPOA) which is governed by Uniform Power of Attorney Act (UPOAA) and health care durable power of attorney which is controlled by Uniform Health-Care Decisions Act.
I will herein focus on DPOA and describe the analysis.

       While DPOA is attractive among laypersons because making DPOA is simple, inexpensive, and flexibility,  the fact remains that the elder abuse (exploitation) occurred by misused DPOA becomes one of serious social issues in the US. 

       The reason why above crime has happened is the absence of monitoring mechanism.
In Japan, although voluntary guardianship system is similar to DPOA, in case a principal becomes diminished capacity, it is required to arrange a supervisor for him/her appointed by courts pursuant to Civil Code.
In UK, Mental Capacity Act (MCA) establishes the Office of the Public Guardian (OPG) and Court of Protection in order to supervise actions of registered lasting power of attorney, with the result that such monitoring system contributes to safeguard from elder abuse.  

      However, UPOAA creates some protective provisions. 
According to Sec.114 (Agent's Duties), each agent has fiducial responsibility towards clients. 
Furthermore, UPOAA restricts grant of authority (Sec.201). In other words, agents' actions that may have enormous influence on clients' life or clients' future require another clients' expression.

      All things considered, DPOA surely enhances self-decision(autonomy) ability of those people, whereas it seems to me that this strategy has potentially a lot of loopholes.