Obtaining A Power Of Attorney For Elderly Parents
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Making important decisions for aging parents can be a challenging task, but power of attorney (POA) can provide peace of mind and clarity in times of need. POA enables individuals to make crucial decisions on behalf of their parents, such as managing their finances or making medical decisions, when they are unable to do so themselves due to age or illness.
While it may be difficult to approach this topic with your parents, having these discussions early on can help ensure that you follow their wishes if their health changes over time. Starting the conversation with empathy and understanding can make all the difference.
In this article, we'll explore how to obtain power of attorney for elderly parents and provide helpful tips on how to approach these discussions with warmth and care. We will also cover something many families do not expect: your parent, not you, is the attorney's client, and the attorney will want to spend part of the meeting alone with them. After all, our ultimate goal is to ensure that your aging parents receive the best possible care and support.
What's a POA?
According to the American Bar Association, POAs are legal documents, which vary between states, that provide a person, or several individuals, with the power to perform actions on behalf of someone else. The individual given authority under a POA is called the agent, whereas the principal refers to the person who is having their affairs managed by other individuals. Agents can only perform actions outlined within the POA document. Moreover, a principal who signs a POA can still make their own decisions, providing they remain able to do so. This means the agent cannot make exclusive decisions on behalf of the principal.
POA Types
Below is more information regarding the different POA types:
General: For this POA, the agent can manage the principal's affairs for a specific period, and the principal may revoke this at any point. These automatically finish if the principal becomes incapacitated and are common when an individual can still see to their affairs but prefers that someone else does this for them.
Durable: These POAs continue after the principal becomes incapacitated and are more common when someone cannot manage their affairs. They can conclude in many ways, including once the principal dies or if the agent completes the conditions within the POA document.
Springing: The terms in this POA do not take effect unless the principal becomes incapacitated. For this POA, the principal remains in control of their affairs until they lose capacity.
Medical: These POAs allow agents to make the principal's medical decisions. They last until the principal is competent and might also expire after a certain period mentioned in the document.
Limited: These limit the agent's ability to make decisions regarding certain tasks as outlined in the POA document, such as paying bills or selling a house. Limited POAs are usually temporary and end when the principal loses capacity.
Why and When to Consider a POA For Your Aging Parents
Here are the common reasons why individuals may consider getting a POA:
Finance issues: POAs enable individuals to continue paying their parents' bills and manage their finances when their parents struggle to fulfill these obligations.
Serious illness: Having a POA for an elderly parent can be helpful as it allows them to focus on getting better and reduces the stresses associated with managing their affairs.
Memory issues: Individuals commonly obtain a POA to manage their parents' affairs if they develop dementia. It is helpful to note that it is necessary to obtain the POA before the parent loses their capacity.
Surgery: When an elderly parent is undergoing surgery, it might be a good idea to obtain a POA so individuals can make decisions on their parents' behalf and manage their affairs until they have fully recovered.
Frequent travel: Some elderly parents like to travel frequently, so POAs can be useful here for ensuring their affairs remain in order while they are away.
How Do I Choose an Agent For My Parents?
When considering a POA for your aging parents, there are several things to keep in mind as you decide who should serve as agent. The most crucial factor is trust - you must choose someone you can rely on to make decisions in your parents' best interests and follow their wishes.
While family members are often chosen for this role, it's important to consider whether they are the best fit. If you think an objective outsider may be better suited to the task, such as a lawyer, accountant, or financial institution, this is also an option, although it may come with additional costs.
Before agreeing to serve as your parents' agent, it's essential to have a thorough discussion with them to understand their needs and preferences. Different types of POAs have different levels of responsibility, and it's important to clarify what your parents expect from you. If your parents need help with medical decisions, for example, this will require more involvement than if they only need assistance with financial decisions.
Finally, it's essential to understand the financial implications of serving as an agent. You will need to keep your finances separate from your parents' and be prepared to justify any decisions you make to avoid legal issues.
Choosing an agent for your aging parents is a significant decision, and it's essential to approach it with care and sensitivity. By having open and honest discussions and seeking objective advice, you can ensure that your parents receive the best possible care and support.
Your Parent Is the Client, Not You
There is one point worth understanding before anyone calls a law office, because it surprises a lot of families.
A power of attorney is your parent's document. Your parent is the one granting the authority, which means your parent is the attorney's client, not you. That remains true even if you are the one who researched the options, found the attorney, made the appointment, and drove your parent to the meeting.
That has a practical consequence you should mention to your parent ahead of time: the attorney will want to meet with your parent alone, without you in the room.
This is not suspicion of you, and it is not a comment on your family. An attorney has to be satisfied that the person signing understands the document and is choosing it freely. That is only possible when your parent can speak without the proposed agent sitting beside them. A parent who has a quiet reservation will often not say it in front of an adult child, and the private conversation is where that can surface. Your parent may want to name a different child, name two children together, narrow the powers, hold off until a doctor says capacity is in question, or not sign at all. Any of those answers is legitimate, and your parent should have a setting in which to give it.
Telling your parent what to expect does two useful things. It keeps them from feeling ambushed when the attorney asks you to step out, and it shows them that you want the document to say what they want, not what is convenient for you. If your parent is also updating a will or trust at the same meeting, expect the same private conversation for the same reasons.
It can protect you as well. If a sibling or another relative later questions the POA, the fact that your parent met privately with the attorney, and that the attorney has notes of that conversation, is far better evidence of what your parent actually wanted than your own account of what the family discussed at home.
So when you raise the subject with your parent, it helps to frame it accurately. You are not getting a power of attorney over your parent. You are offering to help your parent put one in place if that is what your parent decides to do, and the attorney's job is to represent your parent in making that decision.
Starting the Conversation With Your Parents
If you have elderly parents, it's understandable that discussing power of attorney (POA) may be a sensitive topic. However, starting these discussions as early as possible can bring peace of mind and clarity in the future.
When approaching these conversations, it's important to consider your parents' health and well-being. Let them know that you're there to support them and that you will only use the POA powers if it's absolutely necessary. It's a promise that can help reassure your parents that you have their best interests at heart.
Additionally, it may be helpful to seek the guidance of an experienced estate planning attorney. They can provide objective advice and alleviate any concerns that your parents may have. Keep in mind that the attorney will be representing your parent, and will want time alone with them before any document is signed. That is part of how the process protects everyone, including you.
What You Can Do Right Now
Write down what worries you most about your parent's situation, whether that is money, health decisions, or both, and what you believe your parent would want. Then ask your parent whether they would be willing to meet with an attorney about it. Bring that list and any documents your parent already has to the conversation. There is no one-size-fits-all planning here; creating a Life & Legacy Plan that reflects the people you love and what you want your wealth to support is something we can work on together.
The relationship doesn't end when the documents are signed. When something happens, your family knows to call.