I am my mother's power of attorney and if needed her guardian. My sister is her Medical Power of Attorney. Where do our powers differ?

K. Gabriel Heiser, Dec 22, 2009

K. Gabriel Heiser is an attorney with over 25 years experience in elder law and estate planning. Heiser is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson. Visit www.MedicaidSecrets.com for more info.

Hi: I've drafted 100s of both types of powers of attorney. A general durable power of attorney is typically for financial and legal matters, while a durable medical power of attorney is limited to healthcare decisions. The word "durable" here means that the power of the "agent" (the person named to carry out the wishes of the "principal," or person signing the document) will continue to be effective even if the principal becomes incapacitated.

Both of these documents will be effective for all facilities and all states, unless the document says otherwise (which would be highly unusual).

If your power of attorney says you can be named by the court as guardian, then until you are actually appointed by the court as your mother's guardian you have no powers over her healthcare decisions. If indeed you become named as her guardian, then your state law would control who has precedence: you as her guardian or your sister as agent under the medical power of attorney. Most states would say the court-appointed guardian's directions trump that of the agent.

Hope that helps!

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Annlidiot

Dec 20, 2009

I'd like to add another one to Carols list - hopefully she has had direct conversations with both of you about her choices for quality of life and end of life issues, especially if she develops any type of dementia later. Not everyone is comfortable with the conversation but you will see from all of the activity on this site it becomes huge the longer & more care people need.

If not, try to bring it up with your mom & sister. You might also share this site with your sister. Two heads are better than one.

arose4yu

Dec 20, 2009

You have a say so over her financial and legal affairs whereas your sister decides on her behalf for medical issues. I believe that medical P of A or advanced directives only pertain to the specific hospital or facility too, which means if you were to bring her to another facility, your sister would have to fill out the paper work for that again. I'm not 100% sure, so don't quote me on that. But based on my research and personal experience, I believe that is the case. However, you should speak with an eldercare lawyer or other legal expert.

patrica61

Dec 22, 2009

My mom had me named as Durable Power of Attoney and Leg REp plus heath epoxy plus the only on the will. The Durable poer of attorney has more help if your loved becomes ill and can not make any decision due to their health. it was does by a Top attorney in New york and register in the court. It helped me a lot, when ever mom fell or was sick had had the full power of what the doctors could do. it was even good in the state of Florida of which i moved her to take care of her. It helps if the fire dept has to be called for a emegency. But do get with your lawyer, you should have the origianl paper work and make a copy and have it with you at all times if something happen, the health expoxy is a legal paper work that works like a DNR. The person wishes need to be followed out as far as medical care. A power of attorney as not much power and as far as the Durable power of attorney . Both no longer help once the person passes away in all states. hope this help. I had all mom papers work down well in advance before she was too ill .patrica61

dm120900

Dec 22, 2009

My sister and I work well together and discuss all decissions and problems. We make all decissions together. I mainly wanted to know if all areas were covered.

kverduyn

Dec 23, 2009

Your sister has the power to make medical decisions you have the power to make financially driven decisions.

Jeep

Apr 18, 2010

I'm confused when is legal guardinship needed,for a aging parent? When infact they have a legal will already made up stating the the power of attorney, we have already done alot for my dad without legal guardinship, doctor have stated he is not able to take care of his self he is now in a nursing home. My mother is making the desions right now.