When an elder is mentally or physically incapable of managing his own affairs, having a power of attorney can be of immense value. A power of attorney can even be employed if the incapacitation is temporary, for example, when a person is undergoing a major medical procedure. Included in these powers is the ability to make financial and health care decisions and to employ professional help. It is generally in the elder’s best interest to make a power of attorney before mental or physical health problems become too advanced.
If your elder loved one is resisting the idea of a power of attorney, it may help to explain that the chosen agent is legally obligated to follow their instructions exactly as documented. Naming a power of attorney is not giving up control; rather it is a way to ensure that the elder’s wishes are carried out even if he loses the ability to communicate those wishes effectively.
To make a power of attorney, the elder will name an agent—usually a trusted friend, family member, or associate—to handle financial and medical matters on his behalf.
What decisions can the agent make on the elder’s behalf?
"A power of attorney is primarily used as a device for insuring that your directives and decisions in your best interest are carried out," says Martha Kunkis, a real estate and estate planning attorney in New York City. "Especially if you are no longer able to accomplish these objectives without assistance.”
The agent can make financial and medical decisions on the elder’s behalf, and the extent of what the agent may do can be detailed, word for word, when the power of attorney is created. There may be two powers of attorney, one for medical care and one for finances, or the same agent can be chosen for both matters.
“The authorization to make real estate or banking transactions, deal with retirement or government benefits, as well as health care billing and other matters, including family interests, are the most important features of a POA,” says Kunkis. “These powers and others may be expanded or limited according to the needs and intention of the principal.”
Medical vs. financial power of attorney
The medical power of attorney empowers the health care agent to work with the elder’s medical providers to ensure that preferred health care treatments are carried out. In many cases, the agent will refer to a living will or health care declaration to understand the elder’s health care wishes. Some states combine the living will and medical power of attorney into one document, the advance health care directive.
The financial power of attorney empowers the financial agent to handle everything from depositing Social Security checks to managing investments. Financial expertise is not necessary as the agent can hire professionals to handle the more complex matters, but it is of paramount importance that the selected agent is completely trustworthy.
Do not expect a will to function as a power of attorney
A will is no substitute for a power of attorney. While a will designates how property should be distributed after death, a power of attorney details decisions that need to be made during a person’s life. A living will can complement a power of attorney, but it cannot replace it.
Whereas a living will is generally used to address specific medical issues, such as whether the individual wishes to be placed on life support, a power of attorney can address a far broader range of medical and financial issues.
Hire an experienced elder law attorney
An experienced elder law attorney can help you determine how to proceed if you or a loved one wishes to appoint a power of attorney. A power of attorney is recognized by financial institutions, nursing home facilities, and local authorities.They are legal documents which, with the help of an experienced attorney, can be established at a relatively low cost.
Once you have hired an attorney, determine who will be the agent and discuss the responsibilities with that individual. Ensure that the actual document is stored safely and placed in the hands of the appropriate people, and continuously evaluate the power of attorney, as the individual’s personal, medical, or financial situation evolves.