Is financial POA an either-or thing, or do I have to take over everything if it's granted due to incapacity? - AgingCare.com

Is financial POA an either-or thing, or do I have to take over everything if it's granted due to incapacity?

Follow
Share

I feel like this is a dumb question, but I have read through a few different things and can't find mention of this specific thing. My dad has had dementia for several years now. I am not sure of the stage, but he basically has almost no short term memory and can't follow any sort of complicated subject. I really "should" have POA, but because I live with him and keep an eye on what he is doing, and he takes all my advice, it hasn't been necessary yet. We are going to be facing some more complicated tasks in the near future, however, so I am wondering if I should go ahead and set up the POA (I am named in the trust as the person he wants to have this duty, so that part should be straightforward.) My question is, can my dad still write his own checks if he has been declared incapacitated? Our current system if for him to write checks with my supervision, or sometimes I write them if he is feeling too confused, and then he just signs them. I would hate to take that little piece of independence from him as it is one of the only things he has left. I am trying to balance the idea of taking everything over versus putting him through a bunch of forms that I think will be agitating for him. I am hoping POA means we can both continue to do things, but I am not sure when it is related to incapacity.

We are in CA if that makes a difference.

This question has been closed for answers. Ask a New Question.
21

Answers

Show:
Appointing someone as your "agent" under a Power of Attorney extends their authority to that agent and does not replace it. So if your father signs a DPOA he continues to retain all his powers, but now you have certain enumerated powers, too, as detailed in the POA document.
I would NOT wait too much longer, because if he deteriorates to the point where he no longer understands the purpose of a POA, it will be impossible for him to sign one, leaving you with having to go to court to get such powers (often necessary). Depending on his financial situation, the POA should probably include specific clauses permitting gifting for Medicaid planning purposes; note that store-bought forms (indeed even many attorney-prepared forms) omit these powers, so be sure to work with an attorney who specializes in legal situations of elders (called elder lawyers).
Helpful Answer (0)
Report

If you're happy to undertake the duties involved, you want to get it set up now. Leave it any longer and it will be too late, because your father has to have mental capacity in order to give you Power of Attorney. Then, for the time being, you don't do anything with it (or not more than you have already been doing); but once he has lost the capacity to serve his own best interests the POA comes into effect and you take over. At that point, he will not be able to pay his own bills, handle his own accounts, or, indeed, change his mind about giving you POA - this is why it's so crucial to choose someone worthy of his trust who will definitely have the time to manage his affairs. See an elder care lawyer and get it arranged - don't let the grass grow.

Btw, though I don't think this applies in your case, nobody can be obliged to accept POA. Anyone who has not thought it through and/or is not confident they will be able to do the job properly ought not to take on the role.

And Maggie is right to caution you that it may already be too late. His lawyer will need to be satisfied that he fully understands all of the implications of POA.
Helpful Answer (3)
Report

Neomia:
You can get a POA without the parent being declared incompetent. Sometimes an elder is just overwhelmed with the process of paying bills etc. but understands they need paid so as his daughter you can continue for some time to have him write and/or just sign checks which he is aware need to be paid.

However, as he ages and has difficulty with walking, making it difficult for you to get him to the bank for deposits, or transfers of funds for any purpose--it is helpful to have the POA so you can make the transactions for him. If you need to discuss insurance policies for him, or make medical decisions for him, then a POA and a medical Advanced Directive can be needed. As his daughter, working for him at some stage you will encounter the HIPPA law. The HIPPA law seeks to keep your father's medical information safe from outsiders but in reality it becomes a barrier for you the adult child caregiver. Absent of the Advanced directive with your father giving you rights to his information, your hands become tied and you can't help your father on medical matters. If he is getting confused, you live with him, I would get both the POA and advanced directive in place.
Meanwhile, I think your letting him continue to do as much of his check writing
is great. I used to pay the bills by making out the checks, showing him the bills, then he would sign the check. I would show him I was putting them out in our mailbox. This way he felt he was "handling his affairs" and just getting some help. However, eventually he had difficulty signing the checks, so I would just show him the envelops and tell him we are paying X bill.

Your post shows you are thinking ahead. If your dad is under 80 years old, try to see if you can get him a long term care policy. If you are the primary care giver, you may need to hire caregivers for him. It will be much easier if he has a long term care policy. Most companies sell these policies up to age 80 and of course it is less expensive the earlier you get it.
Helpful Answer (3)
Report

Just because you have dad's POA doesn't mean he can't act on his own accord. I think that answers one of your questions if I read it right. Now. About your dad's POA. You may have a bit of a problem getting that done depending on what stage dementia he's in. Just because it mentions you in the trust, if it doesn't convey the power within it, there's no POA, in my opinion. I'm not a lawyer. I'd sure have that looked into asap. Just because he has dementia doesn't mean he can't execute one now, but certainly the sooner the better.
Helpful Answer (1)
Report

I obtained a POA for my father and mother individually about 8 months before my Dad died in 2012. My mother always handled the finances and continued to do so up until my Dad died. I started managing it for her, with her awareness, so that she would feel more confident about me taking it over for her. I had to move her in with me for a year and now she is in an ALF. During this time frame, the Doctor determined that she could no longer make financial or medical decisions on her own, so I initiated with Social Security to become her Rep Payee and he had to validate with them that she no longer has the capacity to manage her finances.

My point to this is, having the POA does not constitute that you are in charge, however, if his Doctor deems he is incompetent, then having the POA will make his life easier, and yours, so that you can carry on taking care of his financial affairs. Social Security does not recognize a POA as a legal document, so that's why I had to go the Rep Payee route. I just applied for my Dad's VA Benefit to help my Mom in the ALF with the Aid and Attendance and the VA also does not recognize the POA so I had to have my mother physically sign the application documents. Seek out an Elder Care Attorney to get the best advice on the correct path and good luck.

In short, the POA is good for managing their finances and allows you to sign on their behalf but it doesn't work for all and one other point, when you get the POA, make sure it's Durable Power of Attorney, where you are able to have financial gain. in the event you need to legally transfer assets to yourself, with the intent of applying for Medicaid.
Helpful Answer (1)
Report

I have POA of both my parents. They still sign their own checks. I write them, Dad is mostly blind and Mom doesn't understand how to write a check ( She never had to) Dad or Mom signs them when I am done. It doesn't replace their abilities, it just makes it possible for you to do something if something happens to them.
Helpful Answer (1)
Report

We run into complications regarding POA's and incapacity, and the actual "effectiveness of the POA document itself.. There are some very critical issues in POA' documents that are often not addressed within them; G Heiser pointed some out.

Some folks think an office supply POA form is the ultimate answer... or even try to utilize that cheap ready made form, long after the capacity of the person is severely diminished. in either case was that form in the best interest of either party? perhaps doubtful!



(An important detail on the checking account is for it to be an 'or 'account in contrast to a 'and' account)

Now a word regarding an attorney: just because they are an attorney; does not mean they are familiar or proficient in elder matters. I have seen many POA documents are failing in substance , (after being properly reviewed)

One does not go to a geriatric doctor when the need is a pediatrician.
Helpful Answer (1)
Report

Is his funeral and burial plot paid for? Contact an elder care attorney (paid for with dad's money) and get good advice about this.
Helpful Answer (1)
Report

I would advise you to get the Power of Attorney while you can. I just went through this where my dad was too far gone and I was stuck without a POA and it made everything most challenging. You take nothing away from him by doing a POA. If you wait tool long you will have to do a guardianship which is expensive and a court battle; and you don't want to go through that.
Helpful Answer (1)
Report

Neo - as others have well said, you want to get the DPOA done & soon.

About the banking, what might be good is to have the account set up as Dad's in that it is his SS# it is tied to with you as a full signature on the account and that the account is POD (pay on death and this avoids probate if that is a consideration but as you are a signature you can continue to keep the account open after his death so it's good to receive any insurance or SS death benefit sort of funds). The actual checks would have his name first and then your name and have his address on the checks. I would have dad pay his accounts on his own as long as possible but perhaps you watch what's what by your checking the account on-line.

If dad can do this, you want to have everything direct deposited to his bank account too - like any retirements, annuities, his SS, etc and all going into 1 account. Now you can work with Dad in doing & setting this up on line and you keep all the password, #'s etc so that you can monitor all this on-line if need be (and if later on, say 3 years from now you need to change things). The sooner you do this the better as you can't easily do this once Dad's decline in cognitive ability is easily visible. SSA is especially difficult to deal with in letting children even with a valid DPOA (they don't recognize it) do anything on their parents account, so you want to do whatever now & on-line to get his all set up just in case you need it.

About getting legal to do this, a good NAELA elder law attorney can do all this probably for a pretty minimal document fee IF you have all dad's details together. It will be well worth it as you really need to have the DPOA, MPOA, his will or a codicil to his old will, and if your state allows a "Guardianship in Case of Incapacity" form done so that is will meet whatever standard is set up for your state. Really if you do a 2 maybe 3 page history on dad, like his & any spouses date of birth (& birth certificate if you can), or marriages & divorces, of property owned & sold, birth info on all his children and that of his wife (or wives if they had priors with kids), it will really cut down on the legal time and legal costs. If you don't do it, then the elder law attorney will have to have his paralegals do this and you will pay for this professional service which you can do on your own. Really good legal will be in the long run priceless to have done correctly.

This site has a drop down list of elder law by state for your to start your search too. Good luck.
Helpful Answer (0)
Report

See All Answers
This question has been closed for answers. Ask a New Question.
Related
Questions