How to Get Power of Attorney Over An Elderly Parent

As your parent or relative grows older, navigating the delicate balance between providing support and preserving their independence can be difficult — especially when handling their finances. However, when an aging parent becomes unable to attend to their financial affairs, their life savings and assets become vulnerable if they don’t have a power of attorney in place. It’s important to establish a power of attorney for an elderly parent well before they become physically ill or mentally incapacitated.

In this guide, we’ll explore the responsibilities of the power of attorney, why an elderly adult may need to put a power of attorney in place, and how to get power of attorney for elderly parents. By understanding the steps involved and the significance of power of attorney, you can ensure the well-being and financial stability of your aging loved one while respecting their autonomy.

What Does Power of Attorney Mean?

Power of attorney (POA) is a legal arrangement that grants a designated person, known as the “agent,” the authority to make decisions and act on behalf of another person, referred to as the “principal.” There are several different kinds of powers of attorney, but the two most common types are financial power of attorney and medical power of attorney.

Financial power of attorney gives the agent the authority to manage financial affairs on behalf of the principal. This can include things like paying bills, managing bank accounts, making investments, buying or selling property, filing taxes, and handling legal and business transactions.

Medical power of attorney allows the agent to make medical decisions on behalf of the principal if they become unable to do so. Usually, the agent is a trusted family member or friend. They have the authority to communicate with healthcare providers, access medical records, and make decisions about treatments, surgeries, medications, and other healthcare-related matters.

There are many reasons to seek out how to get power of attorney over a parent or loved one. As parents age, they may experience physical or cognitive decline, making it challenging for them to manage their financial affairs or make important decisions. Common scenarios where power of attorney becomes necessary include situations where the elderly parent is diagnosed with a degenerative disease like Alzheimer’s or dementia, or when they face physical limitations that hinder their ability to handle financial transactions, pay bills, or manage their assets.

While having a power of attorney in place is essential to protect your loved one from financial or medical risks, it’s critical to establish a power of attorney well before such a responsibility is ever needed. In addition to establishing a power of attorney while your parent is well, it’s also essential to understand and respect your parent or loved one’s wishes, values, and beliefs regarding medical care and treatment options. As you work alongside your elderly parent to create a power of attorney, make sure to ask questions that will help you make critical decisions that align with their values and wishes.

How Does Power of Attorney Work?

Power of attorney is a legal arrangement that involves several steps to establish and execute effectively. By following these steps, you can ensure that the power of attorney process is carried out smoothly and in compliance with legal requirements. Here is a simplified list of steps to guide you through the process:

1. Determine what kind of power of attorney your parent needs to create. Familiarize yourself with the different types of power of attorney available, such as general power of attorney, limited power of attorney, and durable power of attorney. Each type grants varying degrees of authority and serves different purposes. It is crucial to select the appropriate type that aligns with the specific needs and circumstances of your elderly parent or loved one.
2. Choose a trusted “agent” (yourself or another reliable individual). Select a trustworthy individual to designate as the agent. This can be you or another individual who has your parent’s best wishes in mind. This person should also have the capacity and willingness to assume the responsibilities of POA.
3. Consult an attorney. It’s highly recommended that you speak with an attorney who specializes in elder law or estate planning who can provide legal counsel, review legal documents, and ensure compliance with state-specific regulations. An attorney can also help draft the power of attorney document, incorporating the necessary provisions to protect your loved one’s interests.
4. Create the Power of Attorney document. Work with your attorney to create a legally binding power of attorney document. The document should clearly outline the powers granted to the agent, any limitations or restrictions, and the conditions under which the power of attorney becomes effective. It is essential to address specific financial, legal, and healthcare matters that the agent will be authorized to handle.
5. Execute the document. The power of attorney document must be signed, witnessed, and, in some states, notarized. Ensure that all parties involved, including the principal, agent, and witnesses, understand the document’s contents and implications before signing.
6. Share with interested parties. Provide copies of the executed power of attorney document to relevant parties, such as financial institutions and healthcare providers. This ensures that these institutions recognize the agent’s authority and can act accordingly — and quickly — when necessary.
7. Periodically review and update the document. Schedule time to periodically review the power of attorney document with your parent to ensure its relevance and effectiveness. Life circumstances and the needs of your loved one may change over time, so consider updating the document if required.

Remember, the power of attorney is a legal responsibility that should be undertaken with care and diligence. By following these steps and seeking professional guidance, you can navigate the process effectively, providing essential support to your elderly parent or loved one while respecting their autonomy and best interests.

Steps for Getting Power of Attorney Over A Parent

If your elderly parent is already experiencing cognitive or physical decline and does not have a power of attorney (POA) in place, there are steps you can take to get the authority to make decisions on their behalf. It’s important to navigate this process carefully and legally. Here’s a guide to help you through the steps:

1. Consult with an elder law attorney. Start by seeking the guidance of an attorney who specializes in elder law. They’ll be able to recommend the best course of action to take, depending on the state of your parent. Look for an attorney who has extensive experience in handling cases related to dementia or whatever kind of impairment your parent is facing.
2. Assess your parent’s mental capacity. Determine if your parent has the capacity to understand the power of attorney document and the implications of designating an agent. While individuals in the early stages of dementia can often comprehend and make such decisions, those in advanced stages may require alternative legal measures (discussed later in this section).
3. Gather medical documentation. Consult your parent’s healthcare provider to obtain documentation that supports their diagnosis and current cognitive state. This documentation can serve as evidence when establishing the need for a power of attorney.
4. Create the power of attorney document. With the assistance of your attorney, prepare the power of attorney document. Ensure it includes the necessary provisions and limitations to protect your parent’s interests and reflect their wishes. The document should outline the powers granted to the agent and the specific areas, such as finances and healthcare, where the agent can act on your parent’s behalf.
5. Sign and execute the document. If your parents possess the capacity to do so, arrange for them to sign the power of attorney document. This should be done in the presence of a witness, and often, states require the document to be notarized, too.
6. Alternative legal measures: seek conservatorship or guardianship. If your parent’s cognitive decline prevents them from understanding the power of attorney document or signing it, you may need to pursue alternative legal measures such as conservatorship or guardianship through the local court system. To do this, you’ll need to file a petition with the court to request conservatorship for financial decision-making or guardianship for healthcare decision-making. The court will review the case and appoint an appropriate individual (either a family member or a court-designated representative) to assume the decision-making authority for your parent.

An important note: the process of obtaining conservatorship or guardianship can be more complex and time-consuming compared to establishing power of attorney. However, it may be necessary to protect your parent’s best interests when a POA is not in place. Remember, obtaining the appropriate legal authority is crucial to advocate for your parent and honor their wishes during this challenging time.

What Type of Power of Attorney Should I Get?

Choosing the right type of power of attorney is essential, as it determines the scope of authority your designated agent will have. To determine the most suitable type of POA for your situation, consider the following factors:

• Specific needs: Assess the specific areas where you need assistance or representation. Are you primarily concerned about financial matters, healthcare decisions, or both? Identifying your precise needs will guide you in selecting the appropriate type of power of attorney.
• Timing and duration: Consider when you want the power of attorney to take effect and how long you need it to remain in force. Some types of power of attorney are effective immediately and continue until revoked, while others may only be activated under specific conditions or for a limited period.
• Trust and reliability: The agent in this POA relationship should have your parent’s best interests in mind. This person should be responsible, communicative, and capable of making sound decisions on your behalf.

Now, let’s explore the different types of power of attorney.

Limited Power of Attorney

A limited POA grants the agent the authority to act on the principal’s behalf for specific tasks or within predefined limitations. This type of POA is ideal for situations where your parent needs temporary representation for a particular purpose, such as managing their medical care or managing a real estate transaction.

General Power of Attorney

A general POA provides the agent with broad authority to manage various aspects of the principal’s financial and legal affairs. This type of POA is typically effective immediately upon execution and remains in force until the principal revokes it or becomes incapacitated. It can be a useful tool for delegating comprehensive decision-making authority to the agent, especially if the principal will likely need long-term assistance.

Durable Power of Attorney

A durable POA is similar to a general POA but with an important distinction: it remains valid even if the principal becomes incapacitated or mentally incompetent. This type of POA is valuable in situations where you want to plan for potential future cognitive incapacitation, such as Alzheimer’s or dementia.

Springing Power of Attorney

Unlike other types of POA that take effect immediately upon execution, a springing POA only becomes active under specific conditions specified in the document. For example, if your parent becomes medically incapacitated, the springing POA can be triggered to go into effect, giving you (the agent) the ability to make decisions on your parent’s behalf. In this case, you would not have POA before the triggering event, only after. This type of POA allows the principal to retain control until the specific conditions are met.

Why Would You Need Power of Attorney Over An Elderly Parent?

There are a few common reasons why parents may need assistance in managing their affairs as they get older. Assigning power of attorney becomes essential in ensuring their well-being, safeguarding their financial interests, and making decisions on their behalf when they are no longer capable of doing so independently. Here are some common circumstances that may signal the need to consider power of attorney:

Financial Stability

If you notice signs of declining financial management in your elderly parent, such as unpaid bills, confusion with financial transactions, or mismanagement of investments, it could be an indicator that they require additional support. Having power of attorney in place allows you to step in and handle their financial affairs responsibly, ensuring bills are paid, assets are managed wisely, and financial stability is maintained.

Sickness or Medical Needs

A diagnosis of a serious illness or a decline in overall health may necessitate the need for power of attorney, especially when medical decisions and healthcare management are involved. As an elderly parent’s health condition changes, they may require someone they trust to advocate for their medical care, communicate with healthcare providers, and make critical healthcare decisions in line with their wishes.

Cognitive Decline

Cognitive impairments, such as Alzheimer’s or dementia, can progressively affect an elderly parent’s ability to make sound decisions, understand complex matters, or remember important details. When cognitive instability becomes evident, it may be time to establish power of attorney to ensure that decisions are made in their best interest.

Limitations to Power of Attorney

While power of attorney grants an agent considerable authority to act on behalf of the principal, there are important limitations and restrictions that must be observed. It is essential for both the agent and the principal to understand what rights an agent has and, more importantly, what can and cannot be done under a power of attorney arrangement. Here are some key limitations to be aware of.

An agent cannot:

• Make changes to living wills and testaments. A power of attorney does not provide the agent with the authority to alter the principal’s living will or make changes to their last will and testament. These documents outline the principal’s medical preferences and how they wish their assets to be distributed after their passing. Only the principal, while competent, can modify these documents.
• Act against the parent’s best interest. The agent must always act in the best interests of the principal. They should make decisions that align with the principal’s wishes and preferences, promoting their well-being and financial security. Acting in self-interest or contrary to the principal’s best interests is a breach of the agent’s fiduciary duty.
• Perform a marriage. The agent cannot legally perform a marriage ceremony on behalf of the principal. Marital matters are not within the scope of authority granted through a power of attorney.
• Make decisions after their death. A power of attorney becomes void upon the death of the principal. Once the principal passes away, the agent no longer has the authority to make decisions on their behalf. At that point, the responsibilities shift to the executor or personal representative designated in the principal’s last will.
• Change or transfer the POA to another person. The agent does not have the power to change or transfer the power of attorney to another individual. The principal is the only person who can modify or revoke the existing power of attorney document, and they must have the mental capacity to do so.
• Make irrevocable decisions. If a power of attorney is created with specific limitations or restrictions, the agent cannot make decisions that violate those conditions. Additionally, the agent should refrain from making decisions that would be difficult or impossible to reverse, especially if they go against the principal’s expressed wishes.

Conclusion

Obtaining power of attorney over an elderly parent is a significant decision that requires careful consideration, professional guidance, and above all else: empathy. As our loved ones age, providing support while respecting their autonomy becomes essential, and becoming a power of attorney for parents can be a valuable tool in achieving this balance. By understanding the different types of power of attorney available and the specific circumstances that may warrant its use, you can make informed choices to protect your parent’s well-being and financial interests. Coventry Direct has a history of helping folks 65 or older and their loved ones. We’ve helped families sell a life insurance policy for extra cash that paid for long-term care, medical bills, and more. If you need more information about getting power of attorney for a parent, contact us today.