5 Questions About Power of Attorney After Seeing 'You Can See Everything'
The new documentary "You Can See Everything" about Elizabeth Holmes prompted some questions about power of attorney privileges.
The new documentary You Can See Everything about Theranos founder Elizabeth Holmes hit screens with a bang this month. Directors Nathan Fielder and Lance Oppenheim kept the movie a secret until its premiere, and buzz has been building about what it reveals.
It was certainly unexpected for Fielder to make a documentary about Holmes. He's worked in his own particular sort of reality TV for years, first with the show Nathan For You and next with The Rehearsal. While these shows tap into the human psyche in their own ways, as he says in You Can See Everything, he's far from an expert on chemistry or the Theranos case, and over the course of the filming, he seems increasingly confused about what he's doing there, which is also a central point of the documentary.
So much of this movie has been kept hush-hush, and it's an enjoyable experience to watch it unfold in a theater. So: If you haven't seen the movie yet and don't want to read any "spoilers," stop reading now before we get into the nitty-gritty.
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While the documentary is ostensibly about Holmes, it's also about her partner, Billy Evans, and their relationship. After Holmes goes to a federal prison camp to serve her sentence for defrauding investors, Evans reveals on camera that he has power of attorney (POA).
He says that the power of attorney gives him the right to do many things on Holmes' behalf. The documentary shows him tweeting online from Holmes' X account, not indicating that it's not her posting (and not asking for her approval for what he writes), and creating an AI avatar of her likeness. He is also working on a new business with her, although he says he is largely making decisions on their behalf while she's imprisoned.
"The documentary shows how far people assume a POA reaches," Debra Taylor, managing partner and wealth adviser at Carson Wealth, tells Kiplinger.
So, what exactly does power of attorney give a person the right to do, and how does it work?
1. What "powers" does a power of attorney grant?
A power of attorney (POA) is a legal document that grants someone, called an agent, authority to make decisions on a person's behalf in the event of their incapacitation. Typically, one document grants medical power of attorney, and one grants financial power of attorney. As the names suggest, one gives the right to make healthcare decisions, while the other covers finances.
"A broadly drafted financial POA can give an agent authority over the principal's business interests," Taylor explains. "Certain powers, such as making gifts, changing beneficiaries or creating trusts, generally must be granted expressly. Many states require specific language in the document to authorize sensitive transactions such as gifting or certain banking transactions."
Does that mean, then, that a person could, say, speak on another's behalf outside of specific decisions?
"A POA lets an agent sign and transact on the principal's behalf. It does not make the agent's opinions the principal's words. In most states, an agent has no right to access the content of the principal's email and private messages unless the document specifically grants it," Taylor says.
2. Can power of attorney be triggered by incarceration?
In the movie, Evans said Holmes signed the POA document, giving him power to make business decisions for her. But does an incarceration always trigger a POA to go into effect?
"Powers of attorney are governed by state law, so the rules on when a POA can take effect, and what it can authorize, vary from state to state," Taylor says.
There are different types of POAs. A durable POA goes into effect once signed and remains in effect unless the principal cancels it or dies. A limited POA gives authority for specific matters and can have time parameters for when it's valid. A springing POA, meanwhile, takes effect when a specific, predetermined event happens, such as mental incompetence.
"Most of these 'springing' POAs are tied to incapacity, but many states let you name another trigger, such as incarceration, and designate a specific person to confirm in writing that it happened," Taylor says. "In many cases, a durable POA that is effective immediately makes the most sense. This is because a springing document forces your agent to prove the trigger occurred, and banks can be slow to accept that proof exactly when someone needs to act."
3. Do you have any recourse if you believe your POA agent is acting against your best interests?
"An agent is a fiduciary. The law requires them to act loyally in your best interest, avoid conflicts of interest and keep records of every transaction," Taylor says.
If you are in this situation and are not incapacitated, you can revoke the POA. Taylor recommends doing so with a signed written revocation and notifying every institution that has a copy of the POA.
Assuming you are not incapacitated, you also have the ability to sue for breach of fiduciary duty. "Serious misuse can be prosecuted as theft or financial exploitation," Taylor says.
4. What can you do if you think someone else's agent is misusing their powers?
The documentary makes it clear that Fielder doesn't trust what Evans is doing, although Holmes herself doesn't express any misgivings.
If you're a third-party observer and believe someone with POA is acting against the principal's best interests, there are some things you can do, although it somewhat depends on your relationship to the principal.
If you're a family member, heir, caregiver or government agency, you can petition a court to review the agent's conduct, Taylor explains. If a case involves an older or vulnerable adult, you can report concerns to Adult Protective Services.
Additionally, financial institutions can play a role. "Banks can refuse to honor a POA when they suspect abuse and report it, and brokerage firms can place temporary holds on suspicious withdrawals and trades for older or impaired clients," Taylor says.
"If the person still has capacity, though, a court will generally defer to their choices," she adds.
5. Should you assign your spouse or partner POA?
"A spouse is usually the right first choice since no one knows your finances and wishes better," Taylor said. "The weak spot is timing."
That's for a few reasons. First, you will be aging together, so it's possible you'll need help at the same time and therefore can't serve for each other. For this and many other reasons, it's recommended that you also name a backup POA.
Additionally, of course, there's the possibility you divorce. "Many states end a spouse's authority automatically once a divorce is filed or finalized, but not all of them, so update your documents the day you separate," Taylor says.
Taylor also points out that Holmes and Evans are not legally married, which means that if they were to break up, it would not automatically end the POA in the way a divorce would in many states. If Holmes wanted to revoke it, she would have to actively do so.
"In blended families, adding an adult child as co-agent, or requiring your spouse to report to one, heads off a lot of conflict later," Taylor says.
If you have a POA, you should review it "every few years and whenever you move," Taylor advises, so that it doesn't become out of date or invalidated by a state law.
Ultimately, Taylor says, "The best protection is built in before you sign: Name a successor agent and require the agent to report periodically to a second person."
It's important to remember that You Can See Everything is a movie constructed around the idea of suspicion. Don't let the movie scare you off the idea of POAs: They help ensure that your finances and/or healthcare can be appropriately managed in the way in which you want them to be.
And when it comes to Holmes and Evans in particular, we have to go back to that old adage: You never really know what's going on in someone's relationship ... even if you're a documentary crew filming their every waking moment.
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