Durable Power of Attorney Defined
We all love our parents—most of us do, at least—and we want to give them the same care and attention they gave us when we were younger and fell and injured ourselves or when we ran home to them crying about a fight we picked in school. While it’s easy to see them as our strong and indefatigable parents when they are still in the peak of physical and mental health, they need us most when they have already developed dementias or have been rendered incapable of doing the activities of daily living by an accident or medical condition.
Unfortunately, without the proper legal documentation, you won’t be able to do much for your parents when they need you most. When they are no longer able to make sound decisions for themselves regarding their health and finances, you would want to step in to ensure that their physical and financial welfare is safeguarded. To do this, you will need to have a power of attorney.
A power of attorney is simply a legal document that gives another person the authority to act in your place and handle transactions on someone else’s behalf. They come in different types—the ordinary power of attorney which ends in case the one issuing it becomes mentally incapacitated; the limited power of attorney which specifies the extent to which you can represent a particular person; a durable power of attorney; and a springing power of attorney. The last two types are the ones that we will be most concerned with in this post.
A durable power of attorney is what is required by most states when you want to decide on your parents’ financial and medical affairs. It is called durable because it goes into effect when the papers are signed and continues to stay in effect should they become incapacitated or disabled in the future. A springing power of attorney, meanwhile, is similar to a durable power of attorney except it only goes into effect the moment your parents become incapacitated.
While some seniors would opt to retain the decision-making themselves until such time that they become unfit to do so, it’s usually not one of the best choices. A springing power of attorney usually requires additional papers to prove that your parent is indeed mentally incapacitated. This will not only delay certain important financial decisions that you have to make regarding their welfare, it will also open you to fights with other family members who will argue that mom or dad is still in full control of his or her mental faculties—unless it becomes very obvious that he or she is not.
What will you be able to do with a durable power of attorney? Basically, you have control over your mom or dad’s finances. Unless the document you have specifies limitations, you pretty much have the power to decide on their behalf. This includes applying for reverse mortgage or other loans; managing their tax forms; ensuring that their insurance, pension, healthcare, and other accounts are in order; opening bank accounts on their behalf; making charitable donations; managing investments; taking care of their budget; paying caregivers you’ve assigned for them; and paying yourself, among others.
Will you be held liable for your parents’ debts? No. Since you will be affixing your signature as an “agent” or “attorney-in-fact” for your parents’ estate, you will not be held responsible for the debts that they have incurred.
When to Get a Durable Power of Attorney
When getting a durable power of attorney for your parents, it’s important that you do it early on—that is, when they are still mentally competent. This is important because your parents will need to fully understand just exactly what kind of power they are handing over to you. Besides, getting them to sign when they have already been diagnosed with Alzheimer’s or other forms of dementia will render it invalid. Without a durable of power attorney, you will have to go through a lengthier and more costly court process to obtain guardianship over your aging parents.
Understandably, this can be a very sensitive subject for most. After all, you’re essentially asking mom and dad to hand over control of their life—well, their finances, at least—to you. Open and honest communication is essential if you want to protect them from the people who might prey on them. With a durable power of attorney, you are able to ensure that no scam artist will be able to just take away their hard-earned retirement money for their own selfish purposes.
Your parent is most likely receptive to signing this piece of crucial document that will secure their financial future if you will take the time to patiently explain what it is and why it is important. If you feel that an elder law attorney will do a better job of clarifying the issues involved with this document, you can ask your parents to visit an attorney in your area together with you.
Take note that some parents may not be amenable to the idea at first. After all, they will probably always look at you as their “little baby.” But with patience and gentle explanation on your part, they will be able to realize why it’s important to get a durable power of attorney.
Now it can be difficult for most children to acknowledge that their parents are on the verge of losing their minds which delays getting the document that will safeguard their welfare even more. However, you should always be on the alert if you see your parent exhibiting one or more of these behaviors. It would be a good idea to talk to them about getting a durable power of attorney soon before the dementia becomes full-blown.
Behaviors to look out for include the following: 1) Frequent falling or tripping; 2) Lost sense of social norms— including shoplifting; breaking into another person’s property and stealing; and other law-breaking behaviors; 3) Reduced gaze or the inability to move their eyes normally; 4) Memory lapses that keep on getting worse; 5) Financial problems due to the inability to manage money or misplacing or losing money; 6) Inability to understand embarrassment or embarrassing situations; 7) Being disoriented about place and time; 8) Inability to make decisions; 9) Losing the capacity to plan for future events—even for those that will happen in the next hour; and 10) Neglecting personal hygiene and appearance.
When these symptoms start manifesting themselves, it would be a good idea to bring mom or dad to the doctor and begin talking to them in earnest about a durable power of attorney.
Seeking the Help of an Elder Law Attorney
Once you have convinced your parents that a durable power of attorney is necessary, the next logical step would be to visit an elder law attorney. Now take note that any lawyer can prepare a durable power of attorney. However, we specify an elder law attorney for the main reason that they specialize in this type of law. They are also updated on the ins-and-outs and subtle variations of elder law compared to general practice lawyers or attorneys holding other specializations. The connections they hold with nursing homes, gerontologists, and senior care psychologists are also invaluable should the time come for your parents to use these services. Most important, lawyers who devote themselves to serving the elderly know how to talk and include them in the conversation. They are less likely to shout at or lose their patience over their aged clients.
Before visiting your attorney, you will need to prepare your questions in advance. This will make the visit a productive one while ensuring that you don’t stay too long in your lawyer’s office and incur too high a bill for his or her time. Here are some questions to ask your attorney:
If you have other questions that you feel are pertinent, don’t hesitate to ask your attorney. It’s important that everything is clear to you before you engage his or her services. If you feel that the attorney is not listening to your needs or that his or her workload is too heavy to pay any attention to your parent’s needs then don’t hesitate to look for another lawyer.
Some resources where you can begin your search for an elder law attorney include the National Academy of Elder Law Attorneys or NAELA (http://www.naela.org/) and the American Bar Association Senior Lawyers Division (http://www.americanbar.org/groups/senior_lawyers.html).
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