Across the country -- and notably in Western Pennsylvania, where the number of vulnerable elderly has compounded the problem -- a simple legal document called a power of attorney is disrupting the ever-lengthening lives it was supposed to benefit.
A durable power of attorney, known less formally as a POA, allows people too busy, too old, too ill or too far away to designate an agent to take care of financial and property transactions. The POA may authorize an agent to pay bills, change documents, write checks, enter into contracts or buy and sell their house. The purpose is to help people unable to attend to their own affairs.
In most cases, it works. When it goes wrong, lives can be ruined, families torn apart and, wealth and savings lost in a mist of legal wrangling and dubious transactions.
"Once you give people unlimited authority, greed can overcome goodness," said Neil Hendershot, a Harrisburg attorney who has lobbied in the past for reforms in the law. Precisely how many times powers are abused is unclear because no one knows how many power of attorney documents exist. No court requires that they be filed when created, and in many instances, abuses are never uncovered.
Sometimes it's hard to distinguish outright abuse from misunderstanding or incompetence. But motive ceases to matter when the result is chaos.
In Pittsburgh, an elderly man lapsing into dementia signs a power-of-attorney form that an out-of-state friend downloads from the Internet. Now a court is trying to sort out what became of roughly $230,000 in retirement savings the newly empowered acquaintance transferred to a Delaware bank all the while insisting his friend was penniless and asking nursing home officials to put him on Medicaid.
In Iraq, a soldier gets a message from family back in Minnesota. Why, they ask, has he sold his house? Before shipping out, he gave his wife power of attorney. Police say she sold their home, emptied his savings and moved to North Dakota.
In Erie, the mother of a dying man invokes a power of attorney he gave her six years earlier, and does an end run around his will. She changes the beneficiaries on his pension fund from his stepdaughters to her own children. His vehicles, artwork, even his late wife's jewelry, are handed out to people never mentioned in his will.
In Connecticut, a neighbor receives power of attorney from an elderly woman who was ill and whose children were away. He empties her bank accounts, moves the proceeds into a safe, and falsely tells her children she left no will. They got nothing.
In Upper St. Clair, Allegheny County detectives are still sorting through thousands of pages of e-mails and legal documents surrounding the $16 million trust of an elderly widow. Seeking to avoid a court guardian as her health declined, she gave power of attorney to prominent lawyer and political candidate Charles McCullough.
He dispensed $40,000 in checks to four political candidates -- donations the widow, Shirley Jordan, says she never approved. He also created a charitable foundation called for in her estate planning -- a plan its authors say was not to go into effect until her death. Mr. McCullough insists Mrs. Jordan approved those donations. Court filings by Allegheny County prosecutors quote her saying she had no idea they were being given.
After public questions arose about the case, Mrs. Jordan's trust got back $107,000 in refunded donations, expenses and billings.
"The problem we have as judges is that the law as it presently exists permits people to do this," said Frank Lucchino, administrative judge of Allegheny County Orphans' Court. Judge Lucchino says he has seen repeated instances of people employing powers of attorney to help themselves to someone else's assets.
He recalled the words of a deputy state attorney general in his courtroom several years back: "If Jesse James knew about powers of attorney, he'd never have robbed a bank."
One hint that the problem could grow is the constantly expanding measure of life expectancy.
In 1950, the average life expectancy listed by the federal Centers for Disease Control was 68.2 years. A decade later it had risen to 69.7. At last posting, the average American could expect to live 77.8 years.
That happy news, notes Pittsburgh attorney Martin J. Hagan, is tempered by the fact that the elderly are an inviting target. Keeping a body alive has become much easier than keeping a mind sharp.
"Medical science is allowing people to live much longer," Mr. Hagan said. "With that longevity comes a diminution of their mental capacities that makes them more vulnerable, either to con artists or to family members."
The Pennsylvania General Assembly tightened the law governing powers of attorney in 1998. At one point, because of an earlier broadening of the statute in 1992, persons holding the power of attorney were permitted to make gifts to others, even themselves, in unlimited amounts from the assets of the people who had granted the powers of attorney. The Joint State Government Commission, a body that often drafts the legislation that finds its way through the state House and Senate, put together a bill that took away the power to make unlimited gifts.
At the time, Mr. Hendershot, who served on the government advisory committee that helped strengthen the original law, saw remaining openings for abuse after the hole was plugged on unlimited gifts.
"I said it even back then," he recalled. "Abuse will now occur in the area of retirement benefits and life insurance benefits."
That is precisely the fight brewing in Erie, where Ronald Slomski's will became an empty vessel after his mother, using a power of attorney granted years earlier, changed the beneficiaries on his pension from the two stepdaughters he had provided for in his will, to two siblings he had never listed.
The Slomski pension
As Ronald Slomski lay dying at the Veterans Administration Hospital in Pittsburgh in December of last year, he had a pension, some insurance and a will showing where he wanted everything to go.
His wife, Julia, had died six months earlier. The biggest block of savings he had gathered was a 401(k) pension worth $190,000 accumulated over 30 years while working for Thermoclad, an Erie-based metal coatings plant. When Julia Slomski died, the successor beneficiaries were clear: his stepdaughters Jennifer and Jacilyn, whom he raised with his wife.
Twelve years earlier, Mr. Slomski had clearly established what he wanted done with his assets. In a three-page will later filed at the Erie County Courthouse, he left everything to his wife, the former Julia Oldakowski, and, "in the event that my beloved wife predeceases me ... then I give, devise and bequeath my estate to my wife's two daughters, Jennifer L. Oldakowski and Jacilyn R. Oldakowski." The two women have since married, becoming Jennifer Smith and Jacilyn Snyder.
In May of 2005, he filled out a form with his former employer, Thermoclad, designating his wife, Julia, as beneficiary and, in the event she died first, her daughters Jennifer and Jacilyn.
Between the writing of the will and the form designating the beneficiaries of his pension, Mr. Slomski signed another document. It was a nine-page power of attorney that gave his mother, Rita Slomski, broad powers to handle his affairs. From all indications in the court file, it sat unused until Dec. 12, 2006. Ronald Slomski was two weeks from death.
Attorney Paul Susko, who is now representing the Slomski stepdaughters, said Ronald Slomski had become worried that his wife might die before he did and he needed someone authorized to handle his affairs if he became unable to do so. (Rita Slomski refused any comment, as did her lawyers, Ritchie Marsh and Andrew Schmidt.)
Rita Slomski contacted office manager Mary Rizzo, presented the power of attorney and instructed the company to change the beneficiaries on his retirement benefits to Ronald Slomski's siblings, Ronalee Curtis and Randall Slomski.
Thermoclad's staff was uneasy about this sudden change and wanted to be sure it was proper.
Mrs. Rizzo phoned the company's lawyer, Robert Dwyer.
"We just had to consult them on the power of attorney and the process," Mrs. Rizzo said. "We allowed them to sign it after she showed she did have power of attorney."
Not only did Mrs. Slomski have power of attorney, she had it in Pennsylvania. A decade earlier, the Pennsylvania legislature tightened some power of attorney rules, limiting an agent's ability to give gifts and requiring that actions taken by an agent be limited only to those that benefit the maker of the power of attorney -- the "principal."
Those changes followed publicized cases in which persons holding powers of attorney used the power to make gifts to themselves on behalf of the persons they were supposedly helping. That part of the law was tightened.
But in the portion of the law defining the agent's powers, the legislature left the powers to deal with insurance and retirement funds largely untouched and wide open.
Rita Slomski was free to change beneficiaries, to buy or sell insurance policies -- to, in the law's words, "exercise all powers with respect to retirement plans that the principal could if present."
The "principal," Ronald Slomski, died Dec. 28. Everything he had saved had been moved beyond the reach of the heirs designated in his will.
"I've been screaming about this since 1999," said Mr. Hendershot, the Harrisburg lawyer who has campaigned for reform in the law.
In the months that followed, two petitions arrived in the courts: one from Mrs. Smith and Mrs. Snyder, asking for the return of the retirement benefits signed over to Mrs. Curtis and Randall Slomski. Another came from Mrs. Smith, the executrix named in Ronald Slomski's will. She was trying to find out what became of another $133,000 in jewelry, cars, savings and insurance her parents had left behind.
Gone were a life insurance policy valued at more than $34,000, a $17,154 pickup truck, a $4,000 car, a $1,700 snowmobile, various small savings and checking accounts as well as 25 pieces of jewelry estimated at a total of more than $26,000.
Challenging the gifts
Jennifer Smith's petition said Mrs. Slomski had used the power of attorney to make unlimited gifts -- a prohibition written into the law when it was revised in 1998.
Rita Slomski's lawyers acknowledged she had transferred the title of the truck to daughter Ronalee Curtis and had made Mrs. Curtis the beneficiary of one of Ronald's life insurance policies. She had given the car and snowmobile to a friend of her son's and had transferred $34,217.99 -- the amount of one of the life insurance policies -- as a donation to the Lawrence Park Fire Department.
The jewelry, Rita Slomski's attorneys told the court, had been "transferred or disposed of" in accordance with the power of attorney.
The actions, they argued, "fit squarely and properly within the powers granted to her by the Decedent within the Durable Power of Attorney" and noted that, under the POA, Rita "could act on the Decedent's behalf with or without his knowledge ... regardless of his mental capacity ... ."
In short, as Mrs. Slomski's lawyers saw it, her son's will meant nothing compared to the power of attorney by which he'd trusted his mother to handle his affairs.
Complicating matters is Pennsylvania's almost singular standing as a state that sets limits on people who can challenge an action by a power-of-attorney agent. Along with Vermont, Pennsylvania limits legal standing to ask a court to review the actions of an agent under power of attorney. The Slomski stepdaughters would have to appeal the action after the fact.
Common Pleas Judge Stephanie Domitrovich in June rendered a split ruling that kept the case out of Erie County court, hewed to the strict letter of the power of attorney document, and likely set the stage for an appeal.
"Based upon the plain language of the Power of Attorney document, Rita Slomski was empowered to change the beneficiary designation of Ronald Slomski's qualified retirement account," the judge wrote.
The pension monies would stay with Ronalee Curtis and Randall Slomski.
But while Ronald Slomski's power of attorney document gave his mother the power to make gifts, under the 1998 revisions in the Pennsylvania act, the extent of the gifts was too much. Judge Domitrovich ordered the gifts returned.
Both sides are appealing the two rulings, setting the stage for a showdown in Pennsylvania Superior Court. Rita Slomski has indicated -- though she won't answer questions -- that her son somehow indicated he wanted the beneficiaries on the pension changed. Mrs. Smith visited him at the hospital and heard nothing of the sort. Like her sister Mrs. Snyder, Mrs. Smith learned of the abrupt change in Ronald Slomski's pension in a letter from Thermoclad's lawyer, advising them of the shift in beneficiaries.
"We never got to take evidence in the case," said Paul Susko, a lawyer representing the sisters. "The position of Rita Slomski and her children was that really, he didn't have to say anything. Pursuant to the power of attorney she could make these changes."
Mrs. Curtis said what happened is nobody else's business and referred questions to her lawyer, but refused to give his name.
In fact, she has three lawyers, including one who wrote the power of attorney now being litigated. He didn't return calls.
Tomorrow: A friend's "rescue" turns into a tangle, and a soldier overseas loses his home.