Durability tests used to be something that was rarely an issue in the criminal law field. In recent years there have been more and more cases in the court that have hinged upon durability tests in order to prove the existence of any criminal activity at all. The question of which power of attorney was standing in the moment is going to become more and more important as time goes on.
What is likely to happen?
As the nation’s population ages, more and more people are living longer and living in residential and assisted living complexes. A standard part of the application procedure is for the person to place a power of attorney on file that only becomes durable under conditions of diminished capacity. Where problems tend to occur is that the durability of the power of attorney is limited to the extent of the incapacity and the arrival of a deemed competent member of the family. This is when the struggle between who has the real power of attorney is going to complicate criminal proceedings. If you are looking at a case of fraud and financial abuse, or even medical negligence, the power of attorney that was durable at the time of the incident is what will be the deciding factor in whether or not a crime has been committed.
The tangled web of “certified” specialists
Whether you are looking at a case in which someone is claiming to have exercised power of attorney as a certified senior advisor or a certified mental health advocate you have to be very aware of the grey area in which these two certifications exist. There is currently no standardized certification for a mental health advocate available. There is only one recognized certification for a certified senior advisor. There are many people who will lay claim to both titles as the process of standardization and certification is under development now. It will be criminal cases featuring a CSA (certified senior advisor) that you will most likely encounter. These are people who are charged with helping seniors with finances, healthcare and legal issues and many legal lines can be crossed during the course of their activity if they are not actually certified. With everyone involved in the chain of process and procedure revolving around a durability test you must make sure to backtrack the certifications and authorizations as are applicable in your jurisdiction. Get in touch with Lloyd Gastwirth, a Criminal Lawyer for more information on durability tests.