A durable power of attorney enables a person (the “principal”) to appoint an agent, such as a trusted relative or friend, to handle specific legal and financial responsibilities. It’s enormously helpful to prepare this legal document long before someone starts having trouble handling certain aspects of life.
Just like a trust, a durable power of attorney can be written so that the transfer of responsibilities occurs immediately or at a designated point, such as when a person becomes incapacitated. Until that point, the principal may choose to continue to retain these responsibilities.
At the time of the signing, the person establishing a durable power of attorney must be capable of deciding to seek assistance. The document might confer the authority to pay bills or sell certain assets. Or it couldextend to all financial decisions, including selling the family home, managing all assets, and dealing with the I.R.S.
A durable power of attorney is essential because if a person becomes incapacitated or incompetent without preparing this document, family and friends will not be allowed to make many important financial decisions or pay bills. Nor can they do crucial Medicaid planning. Anyone who wishes to undertake these tasks would have to go to court and be officially appointed the person’s guardian.
People often balk at the thought of preparing and signing a durable power of attorney. It looms as a big step closer to dependence, and this may be something that the person doesn’t want to acknowledge. An equally fearsome thought is that the agent they appoint will go against their wishes.
It’s essential, of course, to choose an agent wisely and to discuss the scope of the responsibility. The document can be revised or revoked at any time, as long as the person who signed it is considered competent. Otherwise, itstays in force until the principal dies. To learn more about the durable power of attorney, speak with a lawyer who has expertise in estate planning.
Guardianship
When no durable power of attorney exists and the person you are caring for is unable to make clearheaded decisions about health care, finances, or other aspects of life, guardianship may be the next step (particularly if there is disagreement among family members about these issues).
In order to act as someone’s legal guardian, you have to go to court to have the person declared incompetent based on expert findings.
If family members disagree about the need for guardianship or who should act as a guardian, this can be a painful, prolonged, and costly process that leaves everyone involved feeling angry, guilty, or both. Sadly, it strips your loved one of many legal rights, including the ability to vote, marry, or make enforceable decisions about health care, finances, or living arrangements.
Yet it may be the only way you can gain the legal authority to make decisions and carry out many essential tasks that he or she is no longer able to handle, such as paying bills or arranging admission to a nursing home.
State laws for gaining guardianship differ. Even if you bring the case to court, there is no assurance that you will be named guardian. In some cases, a family member may be appointed; in others, the role might go to an outside trustee, agency, or institution. Guardians can be given limited or broadauthority, depending on what a court rules is needed after a thorough investigation. Sometimes the court doles out responsibilities to several parties.
For example, a bank trustee might oversee financial decisions, while more personal ones like living arrangements are left to a family member. Generally, the court requires reports and a financial accounting at regular intervals or whenever important decisions are made.
Source: from Caregiver’s Handbook, Harvard Health Publications, Copyright © 2007 by President and Fellows of Harvard College. All rights reserved. Used with permission of StayWell. Use of Content | Medical Disclaimer
deborah08brown
Aug 15, 2008 Suggest Removal
i am my mother's caregiver. she has been bedridden for two years, in diapers, cannot feed herself or speak. i have moved in her house, i have paid help 5 days from 7am - 3pm so i can work and do the shopping. evenings and weekends it is just me. my brother has power of attorney and visits on sunday from 4:30 - 5 or so.i have questions concerning some of the things he says about his power of attorney or any rights i might have. where could i find information without alot of expense. i am single and having a hard time finding ways to make income. the paid caregiver comes some weeks and then some weeks she has to take off a day or two and that leaves me here without wages and unemployable since employers want you to be dependable. this began with my father being diagnosed in 1997 with alzheimer's but until two years ago i maintained my own residence.any information would be appreciated
cindy98989
Deborah,The internet has so many sources you can use to answer your questions. Just google your question and read the results that come up. A lot of them are from actual attorneys when the questions are legal matters.
I am my fathers power of attorney, but only over his money at the bank. We never got the chance to do the durable power of attorney. I have been paying his bills since 1993 when my mother passed away. As his dementia got worse, I have his bills mailed to my house so they don't get lost and I can pay them. We opened a checking and savings account in both our names so if something happens to him I will be able to access the money.
Try google, you'll be amazed at what you can find out. It's a shame that your brother is POA considering the fact he visits once a week for 30 minutes while you are spending your life as a caregiver.
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