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

12 Comments

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 P. Beyrer, CFP, EA, is a personal financial adviser, specializing in comprehensive financial planning and investment portfolio management. He is a partner of Blankinship & Foster, LLC, a fee-only wealth advisory firm in Solana Beach, California. He holds a Master of Science Degree in Financial and Tax Planning.

Financial Planning Association

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12 Comments

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.
NO...as long as YOU have DPOA, YOU are the one who decides everything for her. Nobody can take that away. You are the only that can GIVE it away if you decide you don't want to be her DPOA. I did that once, but then had to be her DPOA again as the guardian was stealing mom's 60 dollars a month for clothing. It was very easy to do..just go to the Social Security office. They are the ones who find the guardian if the patient has no DPOA. The doctor sounds like a quack and it's a good thing you fired him. If I were you, I'd report him...NO doctor should EVER put his finger in your face!!! Ethics!!! I'd sure report him.
My mother is 81 and she has a POA for health care, POA for finance and Trust document drafted by her attorney to update them from her 1996 documents. Her attorney has now terminated the relationship because he questions her capacity.
We went to a new attorney and if my mother wishes to make any new changes on her documents or receive the ones done by her previous attorney then she needs to undergo a comprehensive capacity test by a neuropsychologist that would cost her $2500 to do so. This would result in either she can maintain her ability to keep managing her finances or turn them over to her three adult children to manage. In a sense she already has. She wants to keep the control to make her own decisions. Is it worth the $2500 to have my mother do this evaluation or is there another way to go about this?