As we grow older, many of us lose the ability to manage our own affairs. It often becomes the responsibility of adult children to make decisions for their parents and to ensure they receive the best care possible.
Even if your parents are in good health now, it’s a smart idea to research power of attorney for parents to create a long-term care plan. If you have parents that are sick or experiencing a mental decline, power of attorney (POA) is especially important.
Read our guide to understand everything you need to know about power of attorney for parents.
What is Power of Attorney?
The American Bar Association defines power of attorney as giving “one or more persons the power to act on your behalf as your agent.” It is a document where one person (the principal) appoints another person (the attorney-in-fact, or potentially the agent or mandatary depending on state guidelines) to act on their behalf. Powers of attorney are appointed for various reasons (from help with finances to assistance with signing documents) and can be appointed for varying lengths of time.
In a healthcare situation, a power of attorney is similar to a living will. The key difference is that a living will states your wishes via a written statement, but does not appoint someone to act on your behalf in the way a healthcare power of attorney would.
Power of attorney is also slightly different from guardianship. Guardianship covers only personal decisions, such as healthcare, while power of attorney allows financial decisions to be made as well.
Important distinction: Power of attorney only begins when the person or principle is incapacitated to make decisions. For example, as long as your parent is in the right state of mind, they still have authority over their decision making. If they had a stroke or some other event where they are incapacitated, then the power of attorney would essentially “kick in,” allowing you to make decisions on their behalf.
Types of Power of Attorney
Power of attorney comes in many forms, but there are four main types, according to the experts at Elder Law Answers.
- Limited Power of Attorney gives someone else the power to act for you within very specific boundaries, for example, giving someone the right to sign a legal document for you on a date when you are out of town or otherwise indisposed. Usually, this type of power of attorney ends on a specific date.
- General Power of Attorney is all-encompassing and gives the nominated person all the powers and the rights that you possess. A general power of attorney will give your attorney-in-fact the right to sign legal documents on your behalf, pay bills, and conduct financial transactions. Unless the powers are rescinded, the rights of a general power of attorney cease upon the death or incapacitation of the principal.
- Durable Power of Attorney can exist in both a limited or general scope, but it remains in effect should you become incapacitated. In the case of incapacitation, only a court-approved conservator or guardian can represent you, and this attorney remains in place until death unless rescinded whilst not incapacitated.
- Springing Power of Attorney allows your attorney-in-fact to act on your behalf if you become incapacitated, but it does not go into effect until incapacitation occurs. The standard for determining incapacity should be laid out very clearly if this is an option that you would like to pursue.
The 5 Wishes Document and Other Alternatives
According to the South Carolina Bar Association, “The Five Wishes document allows you to communicate your wishes to your family, friends and healthcare providers including decisions about medical treatments you may elect to receive or decline, what you want your loved ones to know about your health, and who you would want to make sure your wishes are followed.”
The Five Wishes document is a type of living will that allows a person to specify their personal, emotional, and spiritual needs, as well as any medical wishes. The document specifies the following:
- The person who makes care decisions
- The kind of medical treatment desired
- The levels of comfort a person is offered
- The way the person would like to be treated
- What the person wants their loved ones to know
If your parent chooses this route, they do not need both a Living Will and a Healthcare Power of Attorney, explains the South Carolina Bar Association. The Living Will only applies to decisions made whilst terminally ill or permanently unconscious, and establishing this could require more than five hours of medical testing. Should your parent choose to have both, make sure that their directives are consistent.
A Lawyer’s Best Tips
Martin Shenkman is an estate planning attorney and an expert in all things power of attorney. In a recent article for Forbes, Shenkman explains navigating power of attorney for parents is all about being informed; “Start by doing research and reading articles online.”
According to Christine Fletcher, partner of Boston-based Burns & Levinson, clients sometimes don’t truly understand the details of power of attorney. In a recent article for Forbes, Fletcher explains: “this seems obvious, but clients often do not read their documents. Review the powers listed in the document.” Fletcher also recommends naming two agents (if your state allows for it) as well as an alternate, in case your named agent dies before you or is incapacitated.
Important distinction: The process of naming power of attorney, laws, regulations are different in each state. When researching or consulting a legal professional make sure to review the correct information for your parent’s state.
Moving Forward with Power of Attorney for Parents
Once you’ve considered the options, speak to your parents to create a plan that keeps their best interests at heart. When in doubt, don’t be afraid to conduct additional research or contact professional help.
Important distinction: Remember, when your parent lives in a senior community, the staff there wants power of attorney in place, so if something happens to your parents, they know who to consult. However, this would only take place if your parent was incapacitated mentally or physically and unable to make their own decisions. If you’re named power of attorney for your parent, you can’t make decisions or requests to your parent’s community as you see fit. (For example, if your parent is of sound mind and body, you can’t call their community and ask for dietary changes, without your parent agreeing to those changes). The community must respect its resident’s rights and wishes.
At Vineyard, our staff is experienced and understands all state regulations regarding long-term care plans. Give us a call to set up an appointment to get your affairs in order. We can also put you in contact with legal and financial professionals to help with power of attorney and other estate planning matters.