How to Get Power of Attorney for a Parent (Without Overstepping)
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As we age, some of us eventually lose the ability to handle our own affairs. That's why you're smart to find out how to get power of attorney (POA) for a parent who is sick, disabled, or experiencing mental decline. But even if your parent is in good health right now, it's wise to plan ahead for potential challenges. You simply never know when an injury or illness may take away your mom or dad's capacity to manage finances or make important decisions about medical care. In fact, the best time to start considering power of attorney is before a parent requires any caregiving.
Broadly speaking, you get power of attorney for a parent by having him or her name you as the agent in a POA document that he or she has signed while sound of mind. However, the process is rarely as simple as it seems, especially when it comes to ensuring that your power of attorney will be recognized by third parties. Things can also become more complicated if you're trying to get power of attorney for a sick parent who is already suffering from dementia or another terminal illness or incurable condition that affects his or her ability to communicate or make reasoned decisions.
So if you think your parent may need someone trustworthy to act on his or her behalf, this is the article you should read. Here are 12 essential steps for getting the authority to handle your parent's financial and/or healthcare affairs:
Nothing in this article constitutes legal advice. Please consult a lawyer who specializes in estate or elder law for up-to-date information and advice about your particular situation.
Understand What the Law Allows (and Doesn't Allow)
POA laws vary from state to state, but they generally share some basic commonalities. Depending on the particular legal document, power of attorney gives you the power to act on someone's behalf for a specified amount of time with regard to financial management, health-related decision making, or both.
But here's the most important thing to understand: You cannot get power of attorney if someone is incapacited. You get power of attorney by having someone willingly and knowingly grant it to you in a signed legal document. He or she must be able to sufficiently comprehend what a POA document represents, understand the effects of signing it, and clearly communicate his or her intentions. (So if your parent lacks the capacity to grant you power of attorney, you'll need to consider the alternative, more complex legal option: adult guardianship.)
A POA document is generally a written agreement between two people: (1) the principal (sometimes called the grantor) and (2) the agent (sometimes called the attorney-in-fact). The agent is the person appointed to act on behalf of the principal. So your parent (the principal) can grant you (the agent) certain powers of attorney. However, there can be more than one person with power of attorney because your parent may decide that various responsibilities should be divided up among two or more people. (Frequently, for instance, one agent will handle financial matters, whereas another will handle healthcare issues.) Or your parent may decide to name an alternative agent who only gets power of attorney in the event that you become unable or unwilling to carry out your POA responsibilities.
The duty of a power of attorney agent is to always act in the best interests of the principal. But specific power of attorney responsibilities depend on the particular agreement. For example, they may include duties like carefully managing the principal's financial interests, such as investments, property assets, bank accounts, and debt obligations. Or they may include duties related to managing the principal's healthcare, such as making decisions about caregiving, living arrangements, and medical treatments. Or they may include a much more limited set of duties related to performing just one transaction on behalf of the principal, such as selling a home.
In some states, you may not be able to carry out certain powers of attorney unless they are explicitly written into the POA agreement. (General, "catch-all" wording is often too vague.) However, as part of carrying out your POA duties, you are allowed to hire professionals to help you, such as lawyers, accountants, financial advisors, and geriatric care consultants. At all times, you have a legal obligation to maintain complete and accurate records and to keep your own finances and personal affairs separate from the principal's.
Here's something else that's critical to understand: All power of attorney agreements terminate upon the death of the principal. So unless your parent names you, in a will, as the executor of his or her estate (or a court appoints you as the executor during probate), you will not have the legal power to manage the deceased's assets. In addition, while the principal is still alive and of sound mind, he or she can overrule your decisions, change or terminate the POA agreement, or name somebody else as the agent.
You should also know that a POA agent cannot:
- Create a contract in order to get paid for personal services provided to the principal
- Vote in place of the principal
- Create or alter the principal's will
- Name someone else as the agent on behalf of the principal
- Take over the principal's guardianship of someone else
- Give eyewitness testimony in place of the principal
- Do anything that is not in the principal's best interests
Learn About "Capacity" and Evaluate Your Parent's Situation
Did you know that only about 37 percent of adults in America have set up any kind of advance directive for end-of-life healthcare (such as medical power of attorney or a living will)? That may be one reason why so many people wonder how to get power of attorney over a parent who seems to be "losing it." After all, by the time your parent becomes legally incapacitated, it's too late to get power of attorney. At that point, you have to pursue the more costly and time-consuming option of adult guardianship.
That's why the issue of "capacity" is so important. For one thing, your parent must have the legal capacity to grant you power of attorney. For another, some types of POA agreements don't kick in until the principal lacks capacity. (Under that kind of agreement, you don't have the right to act on your parent's behalf until he or she is deemed to have no legal capacity.)
But what does "legal capacity" really mean? The definition can vary a little from one state to another. However, in general, the term refers to a person's conscious ability to make a willful, informed decision by understanding the situation, evaluating the consequences of each option, and clearly communicating his or her final choice (and the reasons for it).
The problem is that a person's capacity (or incapacity) isn't always obvious. Rather, it is often fluid and heavily dependent on the particular circumstances and type of decision that needs to be made. For example, someone who has just had surgery is likely to have diminished capacity for a while. (Older people, especially, are prone to lapses in cognitive ability when they are in the hospital due to temporary delirium. In some cases, delirium can last for many months outside of the hospital before resolving.) And the mental abilities needed for making certain financial decisions may differ from those needed for consenting to medical procedures.
In short, capacity isn't always something that you either have or don't have. It's often situational, meaning it can fluctuate. So you should never make assumptions about your parent's capacity. Only trained healthcare and human services professionals can properly evaluate a senior's long-term capacity.
But, of course, different doctors may disagree with each other's assessments, especially if they are only evaluating someone based on their own narrow areas of practice. That's why a general practitioner with plenty of experience in geriatrics is often considered one of the best kinds of medical professionals to turn to for getting a proper clinical assessment. Estate and elder law attorneys are the best professionals to consult for a proper legal assessment (based on clinicians' findings).
If possible, before concluding that your parent lacks capacity to grant you or someone else power of attorney, try to improve his or her capacity. For example, if he or she has an underlying medical condition that impacts cognitive ability, see if there are newer or better treatments available. Treating vision or hearing problems can also lead to better cognition and decision-making capacity.
Also, keep this in mind: Your parent may not necessarily lack capacity just because he or she has dementia. In fact, you can get power of attorney for someone with dementia as long as the disease hasn't progressed to an advanced stage. Since your parent's mental capacity will likely fluctuate, you just need to approach him or her during times of lucidity and make sure that he or she fully understands everything and is making a voluntary, informed, well-reasoned decision.
At the end of the day, you want what's best for your parent. So pay special attention to this issue of capacity. Always remember that prematurely labeling someone as "incapacitated" can have unintended effects on his or her well-being—especially with regard to his or her sense of dignity and autonomy. Once your parent has been deemed to lack capacity, he or she may have difficulty proving otherwise, even if the incapacity was only temporary. So when it comes to elder care, power of attorney isn't something to rush into or take lightly. It requires careful thought and evaluation by everyone involved.
Familiarize Yourself With the Various Types of Power of Attorney
A POA agreement can take many different forms. So it's important to choose the type of power of attorney that is most appropriate for your parent's goals and situation. Depending on the particular agreement, a power of attorney covers a broad or narrow set of responsibilities, usually related to financial and/or medical and caregiving matters.
Generally, it's considered best practice to create separate documents for financial and medical powers of attorney. Each POA agreement can have a different agent or the same one. But an agent who is given authority for certain responsibilities in one POA document does not have the right to perform the responsibilities of a different POA document unless he or she is also named as the agent in that document.
Here are the basic types of POA:
Limited Power of Attorney
Also known as special power of attorney, this type of POA grants an agent the authority to handle a very specific situation on the principal's behalf. For example, your parent may grant you limited POA to represent him or her in the sale of a particular property or to manage his or her transition to a nursing home or assisted living facility. Your authority as the agent ends as soon as you've successfully completed the defined activity or reached the agreement's specified expiration date. And your powers do not extend to anything other than what is specified in the document.
General or Ordinary Power of Attorney
This type of POA agreement usually takes effect immediately and grants an agent the authority to handle a broad range of responsibilities. However, an ordinary POA (often just called "power of attorney") will generally terminate when the principal becomes legally incapacitated. So your parent may use it to grant you a comprehensive set of powers to help out while he or she is away from home for extended periods of time or needs your assistance due to other reasons, such as physical illness or disability.
Durable Power of Attorney
Your parent may want you to handle certain responsibilities right now and be able to continue handling them in the event that he or she loses the capacity to make decisions in the future. That's what this kind of POA is for.
So, what is a durable power of attorney? It's an agreement that goes into effect right away and gives an agent the authority to carry out his or her specified responsibilities even after the principal becomes incapacitated. Essentially, the difference between a "general power of attorney" and a "durable power of attorney" is that a general POA terminates when the principal is deemed to lack capacity, whereas a durable POA stays valid beyond that point. In most cases, a durable power of attorney covers financial responsibilities, but some people also use it to cover certain duties related to caregiving or healthcare.
Springing Power of Attorney
Unlike most other types of POA documents, a springing POA agreement doesn't take effect until a specified date or a particular event takes place. For example, your parent may not want you to have any authority until he or she becomes incapacitated or turns a certain age. Springing POA agreements are often used for healthcare reasons. (If a medical crisis happens, your parent may want you to have financial and/or medical power of attorney, at least until his or her capacity to make complex decisions returns.)
Financial Power of Attorney
Having financial power of attorney means having the authority to access and manage another person's monetary and/or property assets. As an agent with financial POA, you have the right to make certain kinds of financial decisions on behalf of the principal (as long as they are in his or her best interests). For example, your parent might give you the authority to pay bills, file taxes, make and manage investments, transfer money between different bank accounts, handle insurance claims, collect outstanding debts, sell or rent out property, or deal with retirement pensions and government benefit programs.
Medical Power of Attorney
The role of a medical power of attorney agent is to make healthcare-related decisions based on the wishes of the principal. So there is a difference between a "power of attorney" and a "medical power of attorney": A medical POA agreement only grants authority for healthcare and/or general caregiving matters. Medical providers tend to feel a lot more comfortable honoring the decisions of an agent with medical power of attorney than they do with someone who has general power of attorney.
Many medical POA documents are springing agreements, taking effect only after the principal becomes incapacitated. But some are durable agreements, allowing an agent to access the principal's medical records in order to assist with care management and decision making before a full loss of capacity occurs. Your parent may create a medical POA agreement in order to grant you the power to do things like choose his or her doctors, decide between treatment options, select the most appropriate long-term care or living options, hire caregivers, and communicate his or her wishes in an end-of-life situation.
Discuss the Issue With Your Parent (and Possibly Other Family Members)
Since your parent is the only person who can grant you or someone else power of attorney, this step is a must. You need to have a heart-to-heart conversation with your parent, explaining your concerns and pointing out that it's probably better to be proactive now than to wait and potentially lose the ability to have a say in his or her own affairs later on. (Without appropriate POA agreements in place, your parent may eventually lose his or her autonomy and unintentionally create family drama as a result of adult guardianship proceedings, which tend to be lengthy and costly.)
When talking to your parent, describe the various kinds of POA options and make it clear that you appoint a power of attorney agent by choosing someone trustworthy and creating and signing a detailed document that outlines the responsibilities you want that person to have. Be sure that your parent truly understands what signing a POA agreement means, including what his or her rights are under the law.
Let your parent sit with the idea for a while. (You should never pressure him or her into creating or signing a POA document.) It can also be useful to get your siblings and/or other close family members involved in the early discussions. After all, the more transparent and collaborative the process is now, the less chance there will be disputes later on. (Trying to keep things hidden might cause family disharmony and other problems since your siblings or other family members may rightfully question your motives if you've sought power of attorney without their knowledge.)
Also, keep in mind that you don't necessarily have to be the one who is granted power of attorney. Maybe someone else, such as one of your siblings, would be better suited for the task. Consider factors like your health, geographic location, and personal and religious beliefs. Are you really cable of taking on an administrative or decision-making role for your parent if your own health is suffering, you live far away, or you don't agree with the wishes that he or she has communicated?
Your parent has to be able to trust—with absolute certainty—that the agent he or she appoints will faithfully act in his or her best interests at all times. So if you don't think you can be that person, then recommend someone else. But always let your parent make the final decision.
Of course, if your parent is already ill, it may be more difficult to find opportunities to discuss this issue. But that doesn't mean you shouldn't try. As someone who has decided to learn how to get a durable power of attorney agreement (or other type of POA document) created, you owe it to your parent to share your knowledge and concerns before it is too late for him or her to make important decisions.
Consult With Your Parent's Financial Institutions and/or Healthcare Providers
You and your parent may create a solid POA agreement, but that doesn't mean all third parties will automatically accept your authority as the agent. In fact, a power of attorney can be challenged. Banks, investment firms, and medical providers frequently do this. After all, third parties don't want to be held liable for honoring powers of attorney that might be forged, invalid, revoked, expired, or the product of coercion. So the fear of fraud and elder abuse motivates some organizations to adopt policies that make it routinely difficult for a POA agent to use his or her powers.
That's why it's smart to notify each of your parent's financial institutions and medical providers, as well as other potentially skeptical third parties of your intentions well in advance. Even better, try to schedule in-person meetings with key officials and take your parent with you (while he or she is sound of mind). Explain the situation and ask what needs to be done in order to make it easy for you to carry out your powers of attorney when the time comes. You and/or your parent may simply need to sign forms that absolve the third parties of any liability for honoring your POA agreement.
Hire an Estate or Elder Law Attorney (Optional but Recommended)
Technically, you don't need a lawyer to get a power of attorney agreement created. That may lead you to ask, "Where can I get power of attorney forms to fill out?" The answer is pretty simple: You and your parent can get self-guided legal services through a website like LegalZoom or find free power of attorney forms online. In addition, all kinds of POA templates are available on many state websites as well as in some office supply stores.
However, do-it-yourself POA agreements are somewhat prone to errors that can render them weak, useless, or invalid. For example, they are often too vague in their language, making them inappropriate for situations that have special circumstances. In some cases, they are also outdated and don't adhere to current state requirements. Sometimes, they even lack the necessary language for granting the particular powers of attorney that are most needed by the agents named in them.
That's why hiring an experienced, reputable attorney who specializes in this area of law is usually worth the cost. At the very least, consider hiring an attorney to check any POA forms you've filled out for errors and other problems. Used more fully, a lawyer will be able to draft detailed, state-legal power of attorney documents that take your parent's unique circumstances into consideration and explicitly include all of the types of authority that your parent intends to grant you. Plus, you may have an easier time getting third parties to recognize a lawyer-drafted POA agreement than a do-it-yourself one.
A good attorney will also be able to offer alternative recommendations that may better suit your parent's situation. For instance, maybe your parent would feel more comfortable with a living will than a medical POA agreement. Or maybe he or she would want both types of advance health care directives. (The difference between a living will and a medical power of attorney document is that a living will explicitly outlines a person's wishes for end-of-life care, whereas a medical POA agreement may leave those wishes up for debate since an agent must be trusted to know what they are and act accordingly. So a living will tends to provide more certainty in that regard.)
A reputable attorney may also recommend an alternative such as a revocable living trust, which works in many ways like a durable power of attorney agreement. The difference is that a trustee (i.e., someone with the authority to manage another person's assets) can continue to manage or distribute a trust's assets after the grantor passes away. Financial institutions also prefer dealing with trusts over POA agreements.
Help Your Parent Choose the Best Course of Action
Instead of getting your parent to rush into an agreement, allow ample time for him or her to reflect on the various options. Always remember that a POA agreement can be challenged or rendered invalid if it's determined that your parent was coerced into signing it. Ultimately, this decision is your parent's to make, not yours. Your job is to help him or her make a well-informed choice.
You can, of course, remind your parent of why appointing powers of attorney may be in his or her best interests. For example, you can ask thought-provoking questions:
Be supportive. Try to see everything through your parent's eyes by putting aside your own wishes and biases. Give your parent the dignity and independence that he or she deserves (and that you would want for yourself).
Mind All the Details When Drafting the Paperwork
This step will be much easier if you've hired a lawyer. After all, trying to get everything right on a generic power of attorney form that you've downloaded from the Internet or bought in a store can sometimes be difficult or impossible. And it is critical that you get everything right. Even a seemingly small spelling error in someone's name can make the document useless. (Also, be sure that you are using names as they appear on legal identifying documents such as birth certificates and passports.)
At its most basic, a POA document must name the principal, at least one agent, and the actions that the agent is allowed to carry out. The document also needs to specify any durable or springing provisions. And your state may require additional kinds of information to be included.
Beyond the basics, it's a good idea to describe each type of action in as much detail as possible. For example, rather than simply saying that the agent has the authority to manage the principal's finances, stipulate exactly what those powers are, such as the ability to access and use money from particular bank accounts in order to pay bills or contribute to investments. Whatever your parent wants you or another agent to do should be explicitly described.
In addition, it's smart to specify how your parent's incapacity will be determined. Many generic POA forms include this type of language, but it is often vague or inappropriate for the complex realities that often crop up. For example, it's wise to include language that excludes temporary delirium from being considered an incapacity issue. (Your parent may want to be given an adequate opportunity to recover from a seemingly incapacitated state before a springing agreement kicks in.)
Also, if your parent wants you to be financially compensated for your efforts as the agent, then the POA document is the place to make those wishes known. (Unless they are specified in the agreement, you probably won't be able to receive compensation from your parent's assets.)
Get the Final Document Notarized (or Signed in the Presence of Witnesses)
Not all states require notarization of a POA document or any witnesses to the signing of it, but this step is still considered best practice, regardless of where you live. That's because a lot of third parties will question the validity of the principal's signature unless it was verified by a lawyer or independent notary. (A notary will verify the identities of you and your parent before witnessing your signatures.) So if you want to minimize the chances of the POA agreement being challenged, hire a notary to oversee the signing of it.
If notarization isn't required in your state, you can gather one or more witnesses who know you and your parent to watch the signing of the document and provide their own signatures. This method isn't as good as hiring a notary, but it's better than having no witnesses at all.
Make Copies of All Necessary Documents and Keep Them Safe
The original POA document should be in your possession, if you are the agent. Just be sure to keep it in a secure location where you'll have easy access to it. A home safe or a bank's safety deposit box are both good options. Third parties generally want to see the original document any time an agent uses his or her authority.
Making multiple copies of the POA document is also smart. You can keep them in different safe locations, including with a lawyer. Your parent should also have a copy.
And make sure you get copies of all other documents that relate to the responsibilities you'll have to perform as the agent. For example, depending on the POA agreement, you may need copies of your parent's:
- Living will
- Recent bank statements
- Security box deposit information
- Insurance contracts
- House and/or car title
- Loan papers
- Investment documents
You may also need copies of lists that detail your parent's various assets, outstanding debts, financial advisors, accountants, lawyers, physicians, and caregivers.
Present Yourself Correctly When Using Your Power of Attorney
Remember: As a POA agent, you always have to keep your personal affairs separate from your parent's affairs. So when acting on your powers of attorney, you need to make that clear. For example, you sign as a power of attorney agent by using a formula like "Your Parent's Name, by Your Name under POA." (If your name was John Doe and your parent's name was Jane Doe, your signature would be "Jane Doe, by John Doe under POA.")
Under certain conditions, failing to make it known that you are acting in a representative capacity for someone else can make you personally liable for whatever you sign or carry out on his or her behalf.
Consider Pursuing Adult Guardianship If Your Parent Already Lacks Decision-Making Capacity
This should always be the option of last resort. That's because when your parent becomes a ward (i.e., a person under the control of a court-appointed guardian), he or she will lose some important legal rights and independence. In essence, the parent becomes the "child." Plus, many courts don't have the resources to provide sufficient oversight of guardians. So if you aren't the one named as your parent's guardian, it may be difficult to know whether he or she is being properly cared for or whether his or her financial assets are being appropriately managed. That's what makes adult guardianship ripe for elder abuse.
As with laws governing power of attorney, guardianship laws vary from state to state. (In some states, the term "conservatorship" is also used.) In general, a guardianship is either unlimited in scope or limited to financial management or personal care. It usually depends on whether the proposed ward (or "protected person") is deemed to be fully incapacitated or to lack capacity in only certain areas.
Almost anyone can petition a court to become someone's adult guardian, including relatives and care providers. But if you are the one who is seeking guardianship of your parent, you will need to prove that he or she is incapable of managing the areas that you wish to take over. You will also need convince a judge that you would be a suitable guardian and that no other alternatives are feasible. During the legal proceedings, any interested party can challenge your petition, including your parent.
In fact, most states will require you to notify several people of your guardianship petition so that they have the opportunity to participate in the process. So, in addition to your parent, you may have to notify family members such as his or her spouse, parents (if still alive), siblings, other children, and any grandchildren above a certain age. That notification requirement generally exists even for family members who haven't been involved in your parent's life for a long time. Plus, you may be required to notify your parent's caregivers, including his or her hospital, assisted living facility, or nursing home. You may also need to notify any government agencies that are providing benefits to your parent (such as the Department of Veterans Affairs or the Department of Health and Human Services).
Pursuing guardianship of your parent can be very costly and time-consuming, especially if your petition is challenged or your parent's incapacity isn't easy to prove. It can also be very stressful, including for your parent. Plus, keep in mind that if you are appointed as your parent's guardian, you will remain accountable to the court.
Are You Ready to Help Your Parent?
Now that you've learned how to get power of attorney for your parent, you can start moving forward with a plan that is in his or her best interests. Remember that it's wise to seek expert help from an attorney who specializes in estate or elder law. And don't hesitate to read even more about this subject. Check out books such as Powers of Attorney: Health Care and Property by Pauline G. Dembicki or Estate Planning for the Sandwich Generation: How to Help Your Parents and Protect Your Kids by Catherine Hodder.