If, as your parent ages, they are struggling with maintaining their affairs or finances, it may be time to step in and seek a power of attorney, a document that grants you the legal right to make decisions on behalf of your parent. It’s important to seek a power of attorney before your loved one falls ill or is incapacitated so that you can help them make important decisions regarding their medical care, financial affairs, and real estate when they can’t do so independently.

Why do I need a power of attorney?

If you are serving as the caregiver to an aging parent, you may already be assisting them with day-to-day tasks related to their health care or finances; however, if there comes a time where your parent is not of sound mind to make decisions on their own decisions, a power of attorney enables you to help make decisions on their behalf. Otherwise, adult children may not have much say in their older parent’s affairs. As the person receiving authority to act on behalf of your parent, you become the “agent” or “attorney-in-fact”; your parent as the one ceding authority is considered the “principal“.

When talking with your parent about a power of attorney, it can also be a good time to consider long-term care plans if you haven’t already. Talk through their financial assets and listen to how they would like to approach long-term senior care, whether they plan on aging-in-place in their own home, downsizing, or moving into a senior-specific community. Open up the conversation to talk about what decisions they would like you to make in the case that they are unable to make their own regarding medical treatment.

Be specific about the terminology.

There are multiple types of power of attorney, and you may hear associated terms like “durable POA” and “non-durable POA”. Understanding the different types of power of attorney can help you make the best choice about your specific situation and the needs of your parent.

• Limited power of attorney is restricted to a specific action; for example, it can grant the agent the right to sign an important legal document on behalf of the principal if they happen to be out-of-town on the day in question. If you are looking for long-term legal authority to help your parents decide on medical treatment or finances, a limited power of attorney is likely not your best option.
• A general power of attorney allows the agent to take multiple actions on behalf of the principal; agents can settle financial matters or sign documents on behalf of the principal over a long time. This type of power of attorney is usually non-durable and expires when the principal loses the physical or mental capacity to make their own decisions or upon the principal’s death.
• A medical power of attorney grants the agent authority to make decisions on behalf of the principal regarding their medical treatment and health care if and when they are incapable to do so. A medical power of attorney may also grant the agent access to medical records and other important information that would otherwise be inaccessible under HIPAA, though this can vary across scenarios.
• A financial power of attorney grants an agent the ability to act on the financial affairs of the principal, including managing any investments and managing any real estate transactions. A financial power of attorney can also extend to the management of government benefits like Social Security and Medicare, and to the benefits issued by retirement funds.
• A durable power of attorney extends beyond the incapacitation of the principal, allowing the agent to take action or make decisions on their behalf even after they are unable to do so due to their physical or mental health. Whether limited or general, the legal authority granted by a durable power of attorney would continue to take effect regardless of your parent’s condition.
• A springing power of attorney also grants legal authority to an agent when the principal is incapacitated, but it only takes effect in the case of this incapacitation, meaning that adult children would be able to help if an elderly parent lacked the mental capacity to manage their own affairs, but not until that point.

Gather legal documents.

If a power of attorney sounds like a good idea for you and your parent, start gathering any legal documents you may need for the process. While what you need to bring can differ depending on the rights that your parent is granting you, you will likely need to find the deeds to anything your parent owns, including mortgages and loan paperwork. Find out if they have any contracts or other binding documents and locate bank account records, including the records of any safety deposit boxes. You will need birth certificates, passports, and important identification information as well. Your parent should bring their living will and important names of doctors and attorneys.

If you plan on executing the power of attorney without a lawyer, find the specific requirements of your state. You will need to find the correct form to fill out and should find a local notary to make sure the form is valid. Your state may also require you to have witnesses present, so plan ahead to meet all necessary requirements. Unlikely as it may seem, you should also research what to do if a physician in your state refuses to follow the power of attorney in treating your parent. They may be legally required to refer you to another physician or may have exemptions from some liabilities depending on the circumstances of the care.

Seek out an elder law attorney.

While getting the power of attorney for your parent does not actually require an attorney present, if you are unsure of what the best choice is in your situation, you can always consult an elder attorney who specializes in them. This can be in your parent’s best interest if they have complex financial affairs or if they have a unique set of health conditions that may become a consideration in the future. An elder law attorney can take care of finding the correct forms and legal requirements for you and your parent, and can also offer a range of legal advice for your situation.

If your parent is suffering from dementia or is otherwise unable to act on their own behalf, consider if you need to seek guardianship rights.

While a power of attorney requires both the principal and agent to be of sound mind, if your elderly parent is unable to act on their own behalf, there may still be a way to get control over their assets or their health care. Seeking guardianship over your parent is a serious process, but it can be a good idea if your parent is unable to maintain their own affairs but still refuses help. As a family member petitioning for guardianship over your elderly parent, you must prove that your parent lacks the mental capacity to manage their own finances or act as a guardian to themself. There are significant requirements that must be met to obtain guardianship over a parent, but they vary from state to state. You can expect to prove why you would be a qualified guardian to your family member and how you plan to serve as a caregiver to them.

Similar to a power of attorney, while you do not need a lawyer present to obtain guardianship, an elder law attorney can provide valuable insight into your case and can help you obtain guardianship over your parent. Seeking guardianship isn’t necessarily a common option, even for individuals diagnosed with memory loss disorders, but it can be imperative when your family member cannot make their own decisions or when they are being exploited in financial schemes.

Seek your own power of attorney, if need be.

While helping your parent is an important and challenging responsibility, it also encourages you to think about what could happen in the case that you became incapacitated yourself. You may assume that another family member would take responsibility for your care and your assets, but that isn’t guaranteed. If you haven’t established a power of attorney for yourself, consider asking a trusted friend or family member if they would be comfortable serving as the agent in case of the worst. You could seek a springing power of attorney which would only take effect in the case that it needed to, protecting any financial investments you have.

You could also seek a durable power of attorney, since it can be difficult to prove that the stipulations established for the enactment of a springing power of attorney have taken place, especially in the case of a time-sensitive emergency. Similarly, establish a care plan for your elderly parent in the case that you are no longer able to fulfill the role outlined in the power of attorney agreement you are seeking, whether it involves other family members stepping in or the services of an assisted living facility.

References

https://www.alzheimers.net/guardianship-for-parent-with-alzheimers/

https://www.elderlawanswers.com/powers-of-attorney-come-in-different-flavors-8217

https://www.forbes.com/sites/nextavenue/2015/01/07/when-should-you-get-power-of-attorney-for-a-parent/?sh=7608e4c41509

https://www.legalnature.com/guides/what-are-the-types-of-powers-of-attorney-and-what-are-the-differences

Images:

1. Pexels, Matthias Zomer
2. Pexels, Sora Shimazaki