How do I make sure I have the legal authority to make decisions on mom's behalf if the need arises?

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Q: How do I ensure that I have legal authority to act on the behalf of my elderly parent should the need arise?

A: The legal and financial aspects of caring for a relative can be disillusioning, especially if you don't have the knowledge or power to make the right decisions. You may be inundated by vague or contradictory advice, confused by a maze of bureaucratic hurdles, and frustrated by an inability to act at precisely the time you need to.

In order to make most decisions on your loved one's behalf, you must be given the legal power to do so. The simplest and most effective way to do this is with Durable Powers of Attorney. A durable power of attorney is a document your relative executes (while able to do so), that gives you (the agent) specific legal powers to act on his or her (the principal's) behalf. The term "durable" means it stays in effect if the principal no longer has legal capacity to execute such documents.

Durable Powers of Attorney (DPOA's) come in two varieties: medical and financial. A Medical Power of Attorney, also called a Healthcare Directive, allows an agent to make medical decisions on behalf of the principal. These can include authorizing a treatment, hiring or firing a physician, or hiring a personal attendant for home care. The document is only useful if it is accepted by your relative's physicians and medical facilities, and allows them to release information to you and accept your decisions. A related document is a Living Will which contains your relative's specific wishes for sustaining or terminating life-sustaining treatment.

A Financial Power of Attorney is more broad- it allows the agent to act for the principal in many legal and financial activities. Examples are transferring money, filing tax returns, selling assets, or accessing information on behalf of the principal. As with the Healthcare directive, it is only useful if the institution or person you are presenting it to accepts it and releases information to you or allows you to act on your relative's behalf. So, if at all possible, you should know that the document will be acceptable before you need to use it.

Another important legal power is power to act on trust assets. Assets owned by a trust are controlled by the Trustee of that trust. If your relative is the sole trustee of a trust, but is legally incompetent to act in that role, the successor trustee named in the trust must step in. In order to have the power to act on those assets, you should be named the successor trustee of the trust.

If your relative has not assigned these legal powers to anyone before becoming incompetent, you can still go to court to request a Conservatorship hearing. A court-appointed conservator has legal rights similar to the agent of a durable power of attorney. However, petitioning the court to be appointed conservator can be time-consuming and expensive, so a having a Durable Power of Attorney executed in advance is preferable.

Print a Checklist for Obtaining Legal Authority

Jon Beyrer, CFP, EA, is Vice President of Financial Planning at Blankinship & Foster, LLC, and a member of the Financial Planning Association and National Association of Personal Financial Advisors. Read his full biography

 
 

Comments

 
  •  Comments 1 to 8 of 8 
 
 

karynl

Give a Hug

Nov 28, 2007

What is the usual and customary Christmas bonus to give to a live-in caregiver who has been taking care of my mother with mild Alzheimers for about 3 years? I really want to do the right thing, make sure she feels appreciated, but of course, my mother is on a fixed income. I also have to decide how much to give to the weekend relief caregiver who has also been with us for over 2 years?

 
 

JeffN

Give a Hug

Nov 29, 2007

There is no set standard that I know of. And I am sure that any gesture is appreciated. But I have heard that a week's pay is common for many.

 
 

We here at Agingcare don't know of a set standard either. Give your caregiver what you can afford -- that gesture will be appreciated. Also, following up by voicing your gratitude also lets her know that she is valued.

 
 

clfrsf

Give a Hug

Feb 13, 2008

What is one to do when the parent will not give you power of attorney. My mother is clearly incompetent to any one that spends a day or two with her, but when she needs to, or somebody like the nurse or doctor is around, she is the sweetest and most agreeable patient they have ever seen. Nobody will agree that she is incompetent, and they never see the vicious person she is. We are truely afraid for my father, but it doesnt seem that we can even put her in assisted living, because she doesnt want to go. She lives with my sister at this time. Any advice would be greatly appreciated.

 
 

Centerpeace

Give a Hug

May 25, 2008

I have been caring for both of my elderly parents for 4 years. They will soon be 89. My mother is totally deaf, blind in one eye and almost blind in the other. My dad has COPD, diabetes, stints in all valves available for such, a pacemaker and, BTW, he is a severe alcoholic. I am 56, single, self employed and have just about had it. I NEED HELP. Combined they have a monthly income of approximately $2,000 and $55,000 in CD's. Dad occasionally goes to the grocery store and buys groceries but I pay all the bills (they live in my house). We had a daily "helper" for about 5 months but I had to pay for her

 
 

Jaimye

Give a Hug

Jun 16, 2008

I have been taking care of a lady with dementia for about 4 years. I am with her in the morning and stay till about noon. I make her breakfast and give her her pills. The rest of the morning we do what's needed to do. I write out her bills etc. Dr. appoinments, groc shopping for her because she gets upset at the store. She really doesn't want to go out. I feed her dinner and give her pills i am there about 1 1/2 hours. this is 7 days a week. I have gone though this from the very beginning. I am not the durable power of attorney. The person who is has very little to do with this person. My lady is getting worst and I am concerned that I could get in trouble I really need to know what I need to do to protect myself.
J.

 
 

3siblings

Give a Hug

Jan 2, 2012

Question: I was given POA and guardianship if unable to care for oneself years ago for both my Mom and Dad. They divorced, my father passed and I took care of his stuff. My mother refuses to see me now, long story. My niece was given power of attorney at the assisted living facility the night she returned from "moving her car" in the parking and was found going the wrong way on a highway, 40 miles from her home. The Assisted Living facility had no POA on record so my mother signed one for my niece. My brother, who has been living off my mom claims to have a POA also. Now that my mother has been deemed incompetent by her drs. who's legally responsible. Both my niece and brother live in homes owned by my mom who is going to rapidly deplete her funds and will need state assistance. So, they have a vested interest in trying to control the situation. Am I legally responsible because I was named in her documents? I'm thinking with all the discord, I would be best suited petitioning for an independent guardian, but if there are 2 other POA;s can I even do that?

 
 

craiglinda

Give a Hug

Feb 28, 2012

I had to fire my mother's primary care doctor while she was in the hospital. He then threatened me in front of 5 witnesses to file petition to have himself, the fired physician, appointed medical guardian. In front of these witnesses one the nurse on my mother's hospital room, he put his finger in my face and I had to repeatedly tell him to step back from my face. He said I was incompetent because I fired him and left her without medical care in the hospital. This happened on a weekend so I got a hospitalist doctor for the hospital to take over immediately until Monday when I got my mother another doctor. Can this doctor file and be granted guardianship over her? I have medical power of attorney and durable power of attorney and have been appointed by her before she got dementia.

 
  •  Comments 1 to 8 of 8 

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