We may not like to think about it, but there may come a time in our lives when we can no longer make decisions for ourselves; we will need someone else to help us through complex decision-making processes. In these cases, you can still take charge of your own affairs with the help of a trusted person by establishing power of attorney.
If your aging parent wants to prepare for the future, talk to them now about establishing power of attorney so you can respect your parent’s wishes in worst-case scenarios.
What is Power of Attorney?
Power of attorney, or POA, is a legal document that allows someone (an agent/attorney-in-fact) to act on behalf of another person (the principal). A POA can be temporary or permanent and, depending on the type, can allow the agent to make all sorts of decisions, including those related to estate planning, financial matters, and medical concerns.
In most cases, older adults give POA to their adult children or spouses, giving them peace of mind that their loved ones can make important decisions for them and will implement their wishes.
5 Types of Power of Attorney
“Power of attorney” can refer to several different documents. Which one is right for your family depends on factors like your loved one‘s mental capacity and whether or not they have a progressive medical diagnosis.
Different types of POA include the following:
1. Durable Power of Attorney
Durable power of attorney allows the attorney-in-fact to make decisions on behalf of the principal, even if the principal becomes incapacitated.
Durable power of attorney is ideal for individuals who have Alzheimer’s disease or another progressive condition and know they will be unable to make their own decisions in the future. It’s best to establish durable POA in the early stages of Alzheimer’s disease to prevent future complications.
2. Medical Power of Attorney
Medical power of attorney, also known as a healthcare power of attorney, allows the attorney-in-fact to make healthcare decisions on the principal’s behalf if they become incapacitated.
Life is unpredictable. That is why medical power of attorney is a great option for every adult to establish in the event of worst-case healthcare scenarios.
3. General Power of Attorney
General power of attorney allows the attorney-in-fact the ability to handle legal and financial matters, including managing bank accounts or selling property. General power of attorney is not durable, however, meaning that it is no longer in effect if the principal is mentally incapacitated.
4. Limited Power of Attorney
Limited power of attorney is short term and grants the attorney-in-fact the authority to do a specific task, like selling real estate, on behalf of the principal.
5. Financial Power of Attorney
Financial power of attorney allows the attorney-in-fact to manage financial decisions like paying bills on behalf of the principal.
How Do You Get Power of Attorney for a Parent?
Thinking about becoming incapacitated and passing are not easy. However, it’s still important to have tough conversations with loved ones about these major life events.
If you have an elderly parent, it’s a good idea to sit down with them and other relatives to discuss establishing power of attorney. Family members need to practice honest, open communication and truly listen to what the older adult’s wishes are for care regarding chronic conditions like dementia or where they want to receive end-of-life care (do they want to receive care at home or are they fine going to assisted living or a skilled nursing care facility/nursing home?).
Take detailed notes during these meetings so everything is on record. Then, visit an elder law attorney for help drafting appropriate documents or find the right power of attorney forms online. Make sure everyone signing documents is aware of the full scope of the power of attorney; enthusiastic, informed consent of people who are mentally competent is vital to the legality of power of attorney and maintaining a good relationship with all relevant parties.
It’s important to remember that every state has different requirements for what makes a POA valid or not. It’s advisable to research the laws and regulations in your jurisdiction to ensure full compliance and to protect validity of your POA.
POA FAQs
What is the difference between durable POA and living wills?
A durable power of attorney works by establishing a trusted individual, the agent, to make informed decisions for another person, the principal, even in the event that the principal becomes unable to make their own decisions. Many families establish durable power of attorney in the wake of a dementia diagnosis, so adult children can take care of their parent’s affairs as the dementia progresses.
An alternative to a durable POA is a living will, also known as an advance healthcare directive, medical directive, advance directive, and healthcare proxy. It makes known a person’s wishes for treatment should they become incapacitated, so that healthcare providers only provide the level of care the patient wants.
What is the easiest way to get power of attorney?
Establishing power of attorney is an important decision. The best way to establish it is with an open conversation about finances, medical decisions, and more between the would-be agent(s) and would-be principal.
Once finished discussing the terms of the POA with all relevant parties, you can get the process started online by getting and signing documents and sending them to the appropriate institutions. For example, if the POA covers financial responsibilities, the documents may need to be sent to the principal’s bank or credit union and it may be necessary to file IRS Form 2848.
Many POAs also require notarization. Searching “notary public (insert your location)” can help you find people who are authorized to notarize your forms.
How much does a power of attorney cost?
It usually costs a few hundred dollars or less to establish power of attorney, although costs can vary by location, whether you hire a lawyer, and the type of POA involved.
Filing power of attorney documents online can often cost less than $50 and notary fees are often less than $20 per signature.
Do I need a lawyer for power of attorney?
No, you do not necessarily need a lawyer to file power of attorney.
That said, it is often in everyone’s best interests to hire one, especially if the principal is naming multiple agents. A good elder law attorney can provide clarity on the whole process, help you outline directives for your parent’s care, help you decide on the best legal documents to protect your parent’s wishes, and ensure the POA meets all relevant legal requirements.
Who can I appoint as my POA?
All state laws require that agents in POA must be legal adults of sound mind. Outside of that, you usually have free reign on who you choose.
Only appoint someone that you trust to make informed decisions on your behalf, such as family members, close friends, or professional geriatric care managers.
Can a family member make themselves your power of attorney without your permission?
No, someone cannot obtain power of attorney without your permission.
One of the legal requirements for obtaining power of attorney is having the full consent and understanding of all signing parties. POAs are not legally binding if:
- Signatures were forged
- Signatories were not fully aware of the extent of the POA (e.g., they signed forms thinking they were establishing limited POA rather than durable power of attorney)
- Signatories were coerced into signing
How do you get power of attorney for a parent who is mentally incapacitated?
Power of attorney is only legally binding when all parties are of sound mind at the time of signing. If someone does not have the mental capacity to safely make their own decisions, such as an elderly parent with dementia, then establishing power of attorney is typically not possible. Instead, concerned adult children will have to file for conservatorship or guardianship of the elderly parent in probate court.
Planning for the future may seem overwhelming. Open communication about power of attorney now, though, better ensures that your parent’s wishes can be honored, even in worst-case scenarios.
Disclaimer: Each person’s situation is unique. This article is for general informational purposes only and is not intended to take the place of medical, financial, tax or legal advice.