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For those of us involved as care providers for someone having difficulty handling his/her own affairs, whether it’s a family member or not, requires that we have the legal authority to do what’s in that person’s best interest. To do that, it’s wise to learn about, and most likely get, power of attorney (POA) for a person who is sick, disabled, or experiencing mental decline. Keep in mind that I’m not an attorney, nor am I giving legal advice, and the following is educational information only.

 

To get power of attorney (POA), the person granting you that power must name you as the agent to have the powers specified in the POA document, and it must be signed by the giver while s/he is sound of mind. However, the process isn’t always easy or straight-forward, especially if the person involved in giving you POA is currently suffering from dementia, a terminal illness or a condition that affects his or her ability to communicate or make reasoned decisions. 

 

A first step is to understand what your state laws allow, as POA laws vary from state to state. Typically, POA gives you the power to act on someone’s behalf for a specified amount of time regarding financial management, health-related decision making, or both.  Understand that you cannot get POW if someone is already incapacitated as the grantor of the POA must be able to sufficiently comprehend what a POA document represents and the effects of signing it. S/he must clearly communicate his/her intentions, and there can be more than one person with POA.

 

The POA agent is always required to act in the best interests of the principal. This can be critical as a POA may have duties to manage the principal’s financial interests, such as investments, property assets, bank accounts, and debt obligations. In some cases, they may also oversee the principal’s healthcare and may make decisions about caregiving, living arrangements, and medical treatments. While the duties and limits of the powers of a POA must be in writing, one thing remains constant, the POA must maintain complete and accurate records and to keep your own finances and personal affairs separate from the principal’s.

 

While the principal is still alive and of sound mind, he or she can overrule your decisions, change, or terminate the POA agreement, or name somebody else as the agent. It’s also extremely important to know that all power of attorney agreements terminate upon the death of the principal and unless you’re also the named executor of his/her estate, or have been court appointed as executor, you won’t have legal power to manage the deceased’s assets.

 

There are several things as POA that you cannot do:

• Create a contract to get paid for personal services provided to the principal
• Vote in place of the principal
• Create or alter the principal’s will
• Name someone else as the agent on behalf of the principal
• Take over the principal’s guardianship of someone else
• Give eyewitness testimony in place of the principal
• Do anything that is not in the principal’s best interests

 

Even if the person for whom you become a POA agent is in good health right now, it’s wise to plan for potential challenges. You never know when an injury or illness may take away your mom or dad’s capacity to manage finances or make important decisions about medical care. In fact, the best time to start considering power of attorney is before a parent or loved one requires any caregiving.

The best advice I can offer is to talk with either an Elder Law attorney or an attorney that specializes in Estate Planning about establishing a written POA, and remember, the Principal must be part of the conversation, and cannot be mentally incapacitated.

 

Ron Kauffman is a Consultant & Expert Speaker on Issues of Aging. He is the author of “Caring for a Loved One with Alzheimer’s Disease” available as a Kindle book on Amazon.com. You may contact him by phone at

(828) 696-9799 or by email at: drron561@gmail.com.