Executry & Probate

The Importance Of A Power of Attorney For An Elder

Having a power of attorney does not give peace of mind to the elders, but also their caretakers. A power of attorney signifies that a trusted person is empowered to decide about important matters such as finances or health care on the elder’s behalf. If the person no longer has the ability to make sound decisions him- or herself, having such powers in place can be priceless. Today we explore two powers of attorney: to handle financial matters and oversee medical care.

Financial power of attorney

This document is called a “durable power of attorney for finances.” It provides a financial power of attorney. When this is in place, it provides the other party full authority to make financial decisions on the other person’s behalf. In this situation, the appointed person is traditionally called the “attorney-in-fact,” or “agent.” The person can handle routine tasks such as depositing Social Security checks or sorting through mail, but may also be responsible for complex tasks such as filing tax returns or watching over retirement accounts. The person does not have to be considered a financial expert, the most important aspect is that he or she has a good dose of common sense and is completely trustworthy. If needed, it is possible to complete difficult tasks by hiring professional third parties.

Medical power of attorney

This document is often called a “durable power of attorney for health care.” If the elder no longer wishes to make or is unable to make health care decisions, this trusted person is allowed to do so. Depending on the state of residence, the representative will be labeled as a health care surrogate, health care proxy, attorney-in-fact, agent, or something similar. This person works with health care providers to ensure that the elderly person receives the type of care they want. When the agent is arranging care, he or she is legally bound to follow the treatment preferences of the elder in so far as he or she knows what these preferences are.

If it is too late to plan

If you are struggling with a person who is already incapacitated, the process becomes a bit more difficult. You will have to ask the courts to name a conservator or guardian to watch over that person’s affairs. Oftentimes the court will appoint very close family members or a spouse to this position – of course carefully taking into consideration any and all evidence of what the incapacitated person might have wanted. It makes the process more difficult, but can still be arranged.

Approaching the situation

Especially if you see your parents struggle with certain decisions, it is only natural that you feel inclined to ‘take the reigns’ and help them as much as you can. However, it is important to remember that you are legally unable to, and morally should not want to, strong-arm someone into making a decision they are not comfortable with. If the worst-case scenario comes along and you have to ask the court to provide you with control over the elder’s affairs, just remember that this is always preferable to being charged with forgery or fraud later on.

Jonathan Rosenfeld is a nursing home abuse attorney and founder of Rosenfeld Injury Lawyers. Much of Jonathan’s law practice involves prosecuting cases where elderly have been injured or neglected during their stay at a skilled nursing facility. Jonathan also has a blog on the topic, where he discussed new developments in this growing body of law

Family Law

Powers of Attorney and Living Wills Help Children Care for Aging Parents

By Rustin Duncan, Attorney at King Law Offices, PPLC

It’s a fact of life that all children dread occurring. Mom and Dad age and become sick or otherwise unable to care for themselves. Many times this means that decisions regarding care for the elderly fall on the children. emotionally draining task. However, there are legal options available to families to prepare for this season of life to make things more clear. A Power of Attorney and a Living Will are two invaluable documents that ensure the wishes of the elderly are carried out regarding their care, even when they can no longer make the decisions.

While many parents lack a living will, sometimes called a health care power of attorney it’s the most basic and important step they can take. A living will allows someone to grant another the right to make decisions regarding their medical treatment and/or set out detailed instructions regarding how they want their care to be carried out. A living will also allows one to determine if they want to be put on a ventilator, feeding tube, etc. when they are unable to make decisions on their own. The living will allows a person to let their health care agent make that decision or state if they want all live saving care or no live saving care at all.

This document can be invaluable for the kids because it can take those tough decisions off of them and understand they are simply carrying out their parents’ wishes regarding their care.

Another important, simple and effective way to ease the pain and stress of an aging parent is with a Durable Power of Attorney. A durable power of attorney is a document a person executes that gives another person, usually the kids, specific legal powers to act on their behalf regarding money and property. The Durable Power of Attorney stays in effect even when the parent no longer has legal capacity to execute such documents.

A Durable Power of Attorney allows the child to act for the parent in many legal and financial activities. Examples include but are not limited to transferring money, filing tax returns, selling assets, accessing information on behalf of the parent, and access to the parent’s bank account to pay bills for the parent.

If the parent has not assigned these legal powers to anyone before becoming incompetent, the child or caregiver must petition the court for Guardianship to be able to make these decisions or act on behalf of the parent. While the court process is there it is expensive and can take time not to mention adding another burden to an already stressful and emotionally draining experience.

It is very important to have legal safeguards in place before a parent becomes ill or can no longer make decisions for themselves. Parents and children should talk about the wishes of the parents and have a Living Will and Durable Power of Attorney executed to make sure things are clear. This can ease the minds of both parents and children and can allow families to more compassionately and effectively care for aging relatives.