As seniors age, especially those experiencing cognitive decline, many choose to give someone they trust a Power of Attorney (POA). It may be a child or a spouse but it could be anyone who is appointed as the “attorney-in-fact”. Caregivers should consider establishing a power of attorney as a key best practice in carrying out their duties. “Power of attorney” is a term many people only hear in this context, and they often learn what it means when they either receive it or see it transferred to someone else—which is sometimes too late to fully understand the responsibility. Below we explore the Power of Attorney, what it does and doesn’t do.
What is Power of Attorney? (Warning: Legal Jargon Ahead!)
The POA is granted by a “competent” individual (the principal) to another individual (an “agent” or “attorney-in-fact”) who will, from then on, be able to make legal decisions for someone who can no longer make decisions for alone. Each POA has different powers based on how much power they are given by the “principal,” or person giving up power to the agent/attorney-in-fact. People can be given specific power in certain situations, or given broader, more blanket power, depending on the document that transfers POA.
A person possessing POA is responsible for keeping track of everything they do on behalf of the principal. This includes financial and medical decisions. In other words, if someone is incapacitated (say, goes into a coma), if they wake to find their money spent by someone holding POA, there must be a detailed record of where every dollar went. If not, that agent/attorney-in-fact is liable for those resources.
It is vital that the principal keep track of all spending done for the principal using the POA.
Almost anyone can be an agent/attorney-in-fact, including a child, sibling, spouse, friend, or other person trusted by the principal. However, once POA is transferred, especially if the agent/attorney-in-fact has broad powers, all decisions are considered to be decisions made by the principal in the court of law unless it breaches the original terms. It is vital that the principal choose someone they trust completely because some of these decisions are incredibly sensitive and may, in the case of medical decisions, have life-or-death consequences.
POA documents can also be conditional. Even if a senior is in good health, they may want to sign a POA document in case of a sudden health emergency which may cause them to become incapacitated. This designates a person to make decisions for them if the worst, or nearly worst, were to happen—a car accident, a stroke causing permanent brain damage, a sudden onset of cognitive decline, etc. Signing a document and selecting someone to have the power to make choices for you is a smart plan, a plan that is better to have before tragedy strikes than to regret not having afterward.
POA laws vary depending on the state in which you live, so look into what unique laws exist for your loved one’s state if you are looking into POA legislation and filing.
How is Power of Attorney Granted?
Power of attorney is granted through legal documentation. It must be registered with the appropriate government body in your state. The documentation must have all the details about the POA agreement, including requirements and clauses that explain how the agreement might be terminated, for example, or how the agent/attorney-in-fact will be compensated (which is typical, even if it is a family member).
The different types of POA—general, specific, durable, healthcare, etc.—all require specific legal language. An elder law attorney should always be consulted when making these decisions and writing this document, although there are services such as LegalZoom.com which offer the power to create such documents over the internet. Unless you are an attorney or have an attorney present while you do so, you should not sign any documentation produced by such services until it has been thoroughly checked by trusted legal counsel.
Why Would Someone Give Power of Attorney to Someone Else?
Although it is often anxiety-inducing, the causes of giving POA to another person should be acknowledged, as they are not as rare as we might like to believe. Incapacitation, through illness or injury, can happen at any time. Seniors who have Alzheimer’s or similar diseases know that their cognitive abilities will continue to decline eventually, and all seniors should plan for someone to make decisions for them before it becomes too late and the responsibility falls to someone who is not fit or does not want to have the responsibility.
Since the responsibilities of the agent/attorney-in-fact vary based on the document granting them POA, it should be noted that not all powers of attorney are the same. Some people would like for someone to manage their finances, including opening and closing banking or investment accounts; others may want someone to be their legal advocate in a case suing for medical malpractice; still, others could want the POA to include the ability to deny or grant life-sustaining measures such as a feeding tube.
If a senior you know is beginning to think about transferring a POA to someone, advise him or her to consult with a trusted elder law attorney to determine what course of action is best.
More for you:
- Durable Power of Attorney: How it Differs from a Power of Attorney
- Advanced Health Directives and POLST: Practitioner Order for Life-Sustaining Treatment
American Bar Association (ABA). Power of Attorney. Available at http://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney.html. Retrieved February 23, 2016.
Cornell University Law School. Power of attorney. Wex Legal Dictionary. Available at https://www.law.cornell.edu/wex/power_of_attorney. Retrieved February 23, 2016.
National Caregivers Library. What is Power of Attorney? Available at http://www.caregiverslibrary.org/caregivers-resources/grp-legal-matters/hsgrp-power-of-attorney-guardianship/what-is-power-of-attorney-article.aspx. Retrieved February 23, 2016.
Rice, Beverly. What is a Power of Attorney? (December, 2009). LegalZoom.com. Available at https://www.legalzoom.com/articles/what-is-a-power-of-attorney. Retrieved February 23, 2016.