How to Get Power of Attorney

21 October 2019 Assisted Living

It’s something very few people ever think about, but there will come a time when your senior parent will be unable to make decisions for themselves and may need to grant a family member or someone they trust power of attorney. This is especially true if your senior parent suffers from dementia or some other medical condition that can affect their decision-making abilities.

Even if it’s not the most pleasant topic of discussion, taking care of this now will save all of you from the stress and headaches that can come along later. Your parent may become incapacitated due to old age or sickness. When that time comes, someone will have to step in to make decisions regarding their health and or finances. If this is not anticipated and sorted out now, you may have to deal with conflict and headaches down the line.

Of course, there’s always the option of guardianship. However, guardianship or appointing someone to act as a “guardian” (or “conservator” if the guardian is appointed only to manage the person’s finances) of an incapacitated person is done by the court when a power of attorney does not exist. This not only gets the court involved in family affairs but it can also entail substantial court costs and legal fees.

Types of powers of attorney

In general, a power of attorney allows for a person to legally assign or entrust a chosen person with the power to make medical, financial, and specific personal decisions on their behalf. Moreover, powers of attorney are not limited to elderly use. In fact, anyone can give power of attorney to someone they want to entrust it to at any point in their life.

Usually, this is done for a specific purpose. For example, if you will be gone overseas for a couple of months, you can grant someone the power of attorney to sign business documents on your behalf for the duration of your absence. The process of assigning power of attorney may vary from one state to another. In any case, it usually involves filling out a power of attorney form (state-issued or not), or writing a similar document and getting it notarized.

There are different types of powers of attorney, and they include the following:

  • Limited power of attorney: This type of power of attorney grants the agent or attorney-in-fact (the one who is granted a power of attorney) the power to act in your stead for a specific purpose. For example, the agent could be granted the right to sign property deeds on your behalf while you’re on vacation. This type of power of attorney has a specific duration, which ends at a time stated in the document.
  • General or ordinary power of attorney:This is a comprehensive power of attorney. It grants your attorney-in-fact all of the powers and rights you possess yourself. A general power of attorney may authorize your attorney-in-fact the right to sign agreements and other documents for you, pay your bills, and make financial decisions and transactions on your behalf. A general power of attorney is not limited to when you are incapacitated. You can use it if you think you need someone to assist you with financial matters. This type of power of attorney lasts for the duration of your life and only ends on your death or declaration of incapacitation. But, of course, you can rescind it when you want to.
  • Durable power of attorney: This type of power of attorney is flexible as it can be general or limited in scope. However, it does remain in effect after you are declared incapacitated. Without one, though, no one can legally represent you even if you become incapacitated. The court will have to intervene and appoint a conservator or guardian. A durable power of attorney remains in effect until your death. Of course, you can always rescind it while you are not incapacitated.
  • Springing power of attorney:Similar to a durable power of attorney, a springing power of attorney allows your attorney-in-fact to act on your behalf in case you are incapacitated. The main difference is that a springing power of attorney is only effective after you are declared incapacitated. If a person opts for a springing power of attorney, it is essential that the criteria for determining incapacity and, thereby, triggering the power of attorney, is clearly stated in the power of attorney document itself.

There are more specific types of powers of attorney, and we will be touching on some of them in this blog post. The ones discussed above are the general types, especially in terms of arranging for estate-related matters among the elderly or those who feel they require help with making certain crucial life decisions.

Discussing the need for a power of attorney with your loved one

If, for example, your senior parent is ill or has opened up about the possibility of considering a power of attorney as they advance into old age, be open and discuss it. After all, a power of attorney is best obtained with the full understanding and agreement of the person (a.k.a. the “principal”) turning over decision-making rights to their selected agent or attorney-in-fact.

As much as possible, consult a lawyer early on so your senior parent’s questions can be satisfactorily addressed by a legal authority. Your senior parent must understand that signing over power of attorney signifies their decision to leave their decision-making authority in the hands of their appointed agent.

If you have siblings or any other significant relation who may be concerned with family legal matters, seek permission from your parent to openly discuss the matter. Some disagreements may already arise at this stage. However, as long as the principal is of sound mind, they have the last word in terms of choosing their attorney-in-fact or agent.

Who can make a good agent or attorney-in-fact?

The first consideration would be the principal’s complete trust and confidence in the agent. Without this, why would someone turn over their life decisions into the hands of someone else? For example, your senior parent may stipulate in the power of attorney that any time they become mentally incapacitated, they are left in a specific assisted living care facility. The agent should be someone who can be entrusted to do this.

Other considerations to be made include:

  • The degree of closeness between the candidate and the principal should be significant.
  • The prospective agent should ideally have values and principles that align with those of the principal.
  • If the power of attorney covers medical as well as end-of-life decisions, the agent should know about the principal’s own religious convictions and wishes.
  • The candidate should be in excellent health.
  • The prospective agent should ideally live in close proximity to the principal, for obvious reasons.

Since there are specific types of powers of attorney, and assigning all decision-making rights to one person may be stressful and burdensome, the principal can choose to designate specific decision-making powers to different agents in the form of limited powers of attorney.

For example, a medical power of attorney would enable the chosen agent to make medical decisions on behalf of the incapacitated principal. On the other hand, a financial power of attorney empowers the agent to make financial decisions for the principal. This means that each attorney-in-fact is limited to making decisions based on the type of power of attorney they are given. Therefore, a person granted a financial power of attorney cannot make healthcare-related decisions for the principal.

A limited power of attorney can also be made more specific. For example, the agent may be given the right to make financial decisions – but only related to property.

Once these details are ironed out, and your senior parent remains resolute in their decision to grant power of attorney to their selected agent, it’s time to make the decision legally binding.

Making the power of attorney legal

Get in touch with a trust and estate attorney, or get referrals from your network. If your parent already has a lawyer for estate management, this person will also be able to determine if the power of attorney aligns with your senior parent’s estate plans.

Your chosen lawyer should be able to brief you and your parent (as well as the entire family) about your state’s legal requirements concerning powers of attorney. Although state requirements are generally similar, the forms used can vary.

Standard forms granting power of attorney usually include the identification of the principal and the agent, as well as the exact legal decisions the agent is empowered to undertake.

In case you and your senior parent ever require further legal advice or enlightenment, it’s always best to check with your trusted lawyer so they can advise you. This way, you are certain that your parent understands the requirements for granting a power of attorney.

As mentioned earlier, power of attorney forms do not necessarily have to be state-issued legal documents. However, to err on the side of caution, and to ensure every single requirement is met, it’s always better to use a state-issued form – or at least use one as your template.

Before finalizing the power of attorney, try to observe the following:

  • Check the document for clarity: All essentials must be stated, specifically the principal name, agent name, and the type of decision-making powers granted to the agent. The power of attorney should be specific and must mention if the powers are durable, springing, springing durable, etc. This is a very important step as specific information denotes the duration of the power of attorney, its effective date, and what decision-making capabilities the agent has (and doesn’t have).
  • Double-check everything with both the principal and the agent:Ensure they both know the limits of and the legal effects of the power of attorney. If there are several agents, they should all be present when having a meeting with your lawyer so they can ask questions and learn what they need to know.
  • Get the required number of witnesses: Some states require that a power of attorney is signed in the presence of one or two witnesses. As much as possible, where witnesses are required, the power of attorney should be signed by both the principal and agent in the presence of the witnesses.
  • Have the power of attorney notarized: Note that there are states where a notary is required to be present the moment the principal and agent sign the document. There are also states where notarization may not be necessary. However, for the protection of everyone involved, it is always best to have the document notarized. This helps protect the validity of the document.
  • Keep the document safe and make clear copies for your files: The agent should have a copy as well as the principal. If you are the agent, you need to keep the power of attorney in a safe in your home or get it under lock and key in a safety deposit box. Scan the original and keep soft copies for yourself. You may also want your senior parent’s estate attorney to have a copy of it just in case. You need to be ready to present the power of attorney any time you are required to.

It may not be easy to even consider the need to have a power of attorney – whether on your side or your family’s, or your senior parent’s. But it is a practical and legal consideration that has to be made to avoid future stress and disagreements.

Keep the peace within your family and make everything clear from the start. And as much as possible, avoid waiting for your senior parent to become unable to make decisions themselves before entertaining the idea of a power of attorney.

If you have more questions about getting a power of attorney or if you’d like to know more about how this legal contract works in regards to making decisions for your loved one, we can help. Just be sure to reach out to us at Bethany Home Care.