As a parent or relative ages, it can become a struggle to balance respect for their autonomy and independence with protecting them from negative consequences of mental or physical health problems. A power of attorney (POA) is one way to ensure that no matter what happens down the road, your loved one’s wishes will be prioritized.
A POA is one of the most important documents for elderly parents and grandparents, but it’s one that many families haven’t prepared. Fortunately, setting up a power of attorney is fairly simple, and it can save you from future complications. Executing a power of attorney is an important step to take sooner rather than later, even if your aging loved one is still physically and cognitively healthy.
Learn about types of power of attorney, common reasons why seniors need them, and how to have a POA executed for your aging relative.
A power of attorney is a document, signed by a competent adult called “the principal,” that grants a trusted individual the power to make decisions on their behalf if the principal is unable to. The person designated to act in the principal’s best interest is called “the agent.” It’s the agent’s job to make sure the principal — in this case their aging parent or loved one — is well cared for.
Most seniors will execute multiple varieties of POA. An elder law attorney can help your aging relative determine the right combinations for their needs.
A general power of attorney is comprehensive — it gives a senior’s agent power to act on their behalf financially and legally. General power of attorney can be used for healthy parents who want help with financial or personal matters.
This POA is sometimes called a financial power of attorney. It gives an agent power to:
A medical power of attorney — also known as a health care proxy or health care agent — is someone who makes health care decisions for the principal if they’re incapacitated. It’s their job to ensure a senior’s wishes, as stated in their advanced directive or living will, are upheld in case of end-of-life care.
A medical POA only goes into effect when a senior is deemed incapacitated. The agent named is responsible for ensuring health providers follow instructions from the senior’s medical power of attorney documents. They also have authority over:
A durable power of attorney allows the agent to make financial and medical decisions through all mental and physical circumstances, unless the principal chooses to revoke it. “Aging parents or parents with significant health issues should have a durable power of attorney,” recommends Somita Basu, an estate planning lawyer in Santa Clara, California.
Even if the senior is in a coma, has experienced significant cognitive decline from dementia, or is otherwise deemed incapacitated, a durable power of attorney allows the agent to make decisions on their behalf. A non-durable power of attorney is void if the principal becomes mentally incapacitated, so it’s not recommended for dementia patients or seniors at risk of dementia.
A limited power of attorney is exactly what it sounds like — a senior can give someone agency for a limited amount of time, which is generally stipulated in the document. For instance, a limited power of attorney could go into effect for a specific business transaction, like a real estate sale.
A springing power of attorney is executed in advance, but doesn’t go into effect until a senior receives a declaration of incapacity. Seniors who want to maintain autonomy as long as possible may prefer a springing power of attorney. However, this decision could lead to complications and delays down the road. Medical evaluations related to determining incompetence can be costly and time-consuming, and are subject to legal conflicts.
A POA grants a chosen relative or friend the ability to make decisions when a parent or grandparent is either unwilling or unable. Here are a few reasons seniors may feel it’s time to set up a power of attorney:
Choosing an agent is often one of the most time-consuming parts of the process, since it’s important for seniors to ensure their best interests, says Basu. Here are a five questions to consider when selecting an agent for a senior’s power of attorney:
Sometimes, adult children can feel hurt or jealous knowing their parent has given a sibling POA. A family elder care planning meeting can be a forum to discuss choices and help people begin to accept them.
A senior’s wishes may not be known or respected without legal documentation, so it’s important to discuss a power of attorney with aging relatives.
Experts recommend establishing a power of attorney for an elderly parent before they need it — especially if they’ve received a concerning diagnosis. Patients diagnosed with early-stage dementia should set up a power of attorney before the disease progresses. If an aging relative is determined no longer competent to make their own decisions and doesn’t have a POA, family members face a complicated, expensive legal process to set up a conservatorship or guardianship.
While many do-it-yourself power of attorney forms are available, it’s a good idea to have a lawyer draft one tailored to your family’s needs. There are many issues to consider, and one size doesn’t fit all. Here are four common scenarios an elder law attorney can help address:
The National Academy of Elder Law Attorney’s “Find a Lawyer” tool can help you find a local professional to assist with a power of attorney.
Samantha L. Shepherd is a certified elder law attorney and former president of the Missouri chapter of the National Academy of Elder Law Attorneys (NAELA). She is the managing attorney of Shepherd Elder Law Group in Overland Park, Kansas, and Hutchinson, Kansas.