Robin Schiltz, C.D.S.Remember the days when your parents had a say over everything in your life? They made decisions about what you ate for breakfast, what time you went to bed, and what you wore to school, along with a myriad of other day to day decisions.
Well, those days have long since passed and now, as seniors, your parents may struggle with or even be unable to make important decisions for their health and well being.
This means you must step in to help, but first you need to make it legal.
Here’s how to get a power of attorney for an elderly parent:
- Speak with your parent to ensure they’re aware they are giving you power of attorney and all it entails
- Have them sign a written authorization that states all the provisions of power of attorney
- Maintain this power of attorney until one or both parties wants to revoke it (be advised that POA’s can be irrevocable, so speak with an elder law attorney to decide which one is right for your particular situation).
Since power of attorney is a legal responsibility, it’s not one you want to take lightly.
In this article, we’ll walk you through everything you need to know about obtaining power of attorney, which rights it gives you, and when it may end.
What Does Having Power Of Attorney Mean?
More than likely, you’ve heard of the term power of attorney, but you might not be sure what it means. Allow us to explain.
When you have power of attorney over an aging parent, this is a form of permission for you to make decisions that your parent necessarily cannot.
As we mentioned in the intro, you must draw up a legal document that’s signed by both parties for the power of attorney transfer to be legally binding.
Once that document is signed, what kinds of rights and abilities do you have?
Among other things, you’ll be able to make medical decisions for your parent’s treatments and healthcare, manage their financial affairs, and you can even make financial choices for them
There are certain situations in which a power of attorney is best:
- If one or both of your parents were recently diagnosed with dementia, Alzheimer’s disease, or another disease that will gradually affect their mental capacity and thinking, they may not trust their long-term decision-making.
- Perhaps your parents are retired and still of able mind and body. They’re just rarely home, so they want to trust you to manage their affairs while they’re off traveling the world.
- Or, your parents could even think preventatively and seek power of attorney for a specific situation, such as if they’re in an accident or have major surgery.
According to the American Bar Association, “A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you.”
We strongly recommend that a power of attorney be assigned to ONE person.
Many senior parents assign several or all their adult children which can be a big mistake. If the children are not cooperative when the time to use this document comes, there may be expensive legal battles (not to mention emotional ones) to deal with.
Learn more about this common mistake here.
When Should You Get A Power Of Attorney?
You may not realize this but it’s a good idea for anyone over the age of 18 to have a Power of Attorney (POA).
Why?
…in most states parents don’t have the authority to make health care decisions or manage money for their kids once they turn 18—even if they are paying the tuition, still have those kids on their health insurance plans and claim them as dependents on their tax returns. That means if a young adult is in an accident and becomes disabled, even temporarily, a parent might need court approval to act on his or her behalf.
Forbes.com
So, following this logic – it’s easy to see that as we all get older – the chances of health emergencies happening increase significantly.
Although there is no specific age that is recommended for seniors to get a POA, we would recommend that you have one in place as soon as you have children – and certainly once those kids are adult children.
Don’t wait until you’re in your 60s or 70s or older.
And certainly – if an elderly parent or loved one is showing signs of dementia, get a POA immediately BEFORE they are diagnosed and certainly before they are unable to understand what they are signing.
What Determines Power Of Attorney Over A Parent?
A power of attorney document is bound by law when both parties sign it.
In a situation where a parent is not incapacitated, you’d begin your process of obtaining power of attorney by sitting down with your parent and discussing it.
- The two of you would talk about everything that should be included in the power of attorney document, ensuring your parent’s needs get met.
- Write all this information down.
- Have your parent check the document and make any changes if necessary.
- If both parties are pleased with the power of attorney document, they can sign it. In some states, it’s mandated that you have witnesses present while the power of attorney notary is signed.
This document would then determine your power of attorney.
One note about getting a power of attorney form via the internet: legal experts do not recommend it.
According to Stuart Furman, legal expert from A Place For Mom, “People should stay away from the internet and have a power of attorney custom drafted to your circumstances.” He says, “If a power of attorney is ambiguous it is ripe for challenges and interjections.”
In the A Place For Mom article, he notes that “getting a power of attorney document from an online vendor means that you might pay for a document that:
- Does not cover the legal requirements of your state
- Doesn’t represent the details that are appropriate to your situation
- Is not current
- Is too ambiguous
- Lacks important authorities”
It is far better to sit down with elder law attorney who will ensure all legal matters are completed and power of attorney forms are filed correctly.
How Do I Get Power Of Attorney For An Incapacitated Parent?
If you’ve decided that obtaining power of attorney over one or both of your elderly parents is the best course of action, you may wonder how to do it if they’re incapacitated.
The process is different than the steps we laid out at the beginning of this article.
Here’s how it works:
Step 1: Usually, the first step involves consulting with your parent about you becoming the power of attorney, but that won’t happen here.
It’s important to mention that power of attorney cannot be granted to you unless a person has a sound mind. This would exclude those who are incapacitated.
Step 2: This means you’ll have to see a judge to get conservatorship, which is a form of adult guardianship.
This isn’t full power of attorney, but you still have the right to decide financial and medical matters on your parent’s behalf.
Step 3: If your parents wrote a living will that grants you power of attorney, then there’s no need to apply for guardianship.
In such a case, you also wouldn’t have to go before a judge. You’d automatically get power of attorney under the provisions in the document.
Otherwise, the guardianship would prevail – although someone with power of attorney would have more authority than one who simply has legal guardianship (for example, a sibling who may already have power of attorney).
Types Of Powers Of Attorney
Durable Vs. Non-Durable Power Of Attorney: What’s The Difference?
Power of attorney is not just “blanket rights” over a senior. There are many forms, namely, durable and non-durable power of attorney.
What are these and how are they different?
Durable Power Of Attorney (Durable POA)
A durable power of attorney would follow the steps outlined in the intro. When both parties sign the document, the durable POA goes into effect for you to act on behalf of your parent.
The only way this legal right would end is if your parent passes away, you pass away, or one or both parties revokes it in writing.
Non-Durable Power Of Attorney
As the name suggests, a non-durable POA is not as long-lasting. Should your parent become incapacitated from injury, illness, or disease, then your rights as power of attorney significantly lessen.
This is a limited power of attorney, so you will only have the legal authority to make a few decisions for your parents, if any at all.
Besides durable and non-durable powers of attorney, there are three other forms we want to discuss as well. These are springing, medical, and financial powers of attorney.
Springing Power Of Attorney
If you like to plan for the future, you may be interested in springing power of attorney.
This lets you make the provisions now without the power of attorney going into effect the moment the document is signed.
Instead, the provisions of a springing POA grant you the power to make legal decisions only if and when certain circumstances arise. For example, maybe your parent becomes incapacitated.
One caveat: in an article on Forbes.com, attorney Christine Fletcher states, “A springing power of attorney seems more attractive to most people, but it is actually harder to use. Your agent will need to convince the bank that you are incapacitated and, even though the document spells out how to do that, your local bank branch often does not want to make that determination. Translation: your lawyer often needs to get involved. For that reason, most attorneys advise you to execute a durable power of attorney. The attorney will often hold the original power of attorney until it is needed as an extra protection.”
Medical Power Of Attorney
Sometimes called an advanced directive, the medical power of attorney focuses on the long-term medical care of a senior.
They should be of sound mind when drafting a medical power of attorney document with you. All decisions described in this document should pertain to the senior’s medical care.
Financial Power Of Attorney
As you probably guessed, a financial POA relates to you managing a senior’s finances going forward.
This doesn’t necessarily mean you assume their financial burden, but rather, you make decisions about how your senior parent’s financial assets are handled.
For example, you might set up auto pay for the senior’s bills or decide when their social security checks get cashed.
If you want broader control of their financial matters, such as managing their bank accounts, the freedom to sell their assets, or even overseeing their investments, it’s possible to obtain this through financial power of attorney.
What To Do If You Have No Power Of Attorney
Your parents are ultimately the ones who will determine if they want someone to have power of attorney over them.
Ideally, they should discuss with you or another adult child the provisions of the power of attorney documentation years before they need the kind of care outlined therein.
Doing so ensures they’re of sound mind and the power of attorney can go through without a hitch if needed.
But, what if they haven’t done this or your parent assumes they don’t need power of attorney, even when it turns out they do?
At that point, it becomes a court matter.
A conservator is appointed through the court to oversee a senior’s financial, medical, and other matters going forward. In most cases, this conservator is a member of the family, but not always.
Even still, getting to the point of conservatorship is expensive and time-consuming for you and the rest of your family.
Also, the court determines who the conservator is with no say from your side.
If you have a sibling or other family member you’re not that close with and who you worry might not act in the best interest of the elderly parent should they get the conservatorship role, there would be nothing you can do.
It’s really best if you sit your parents down while they’re still in good mental health (and physical health if possible) and discuss power of attorney.
It will give them and you greater peace of mind, especially later down the road.
Just remember that power of attorney does not replace a last will, which allocates belongings and finances after death. Your senior parent needs both documents.
Conclusion
Power of attorney allows you to make decisions on your parent’s behalf when they no longer can do so for themselves.
This legal document allows you to allocate funds and determine which medical treatments your parent receives, as well as other rights.
Your senior parent must be of sound mind to grant you power of attorney.
You also have to create a legally-binding document for the power of attorney to go into effect. Barring that, the court will appoint a conservator to act for your parent instead.
Frequently Asked Questions
Can I write my own power of attorney?
It is not recommended that anyone write their own power of attorney. For one, it may not cover certain legal requirements of your state. For another, it may not cover the details that are appropriate for your situation. It is better to seek legal advice when it comes to drawing up a power of attorney to ensure everything is covered properly.
Can I open a bank account as a power of attorney?
That depends on how the POA is set up. To be sure you get the correct legal advice for your situation, you should contact an attorney for guidance.
Disclaimer
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Additionally, this website contains links to other third-party websites, which are only for the convenience of the reader, user or browser and we do not recommend or endorse the contents of the third-party sites.
Please consult an attorney to obtain legal advice with respect to any particular legal matter. No one should act or not act on the basis of information we have provided without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can tell you if the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.
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