By Christina Romine, Elder & Disability Law Clinic Student, Spring 2018
Growing older has many challenges and concerns. As children become caretaker of their parents, they may find themselves faced with many barriers that block their ability to fully care for their aging parents. HIPPA laws, for example, may prevent them from speaking to doctors about the elderly parents’ medical conditions or treatment. Banks, government agencies and other services may also give caretakers the run-around unless they have some sort of legal power over the elderly person.
Appointing an adult child or caretaker to be Durable Power of Attorney or Health Care Power of Attorney or both will help facilitate an easier process to allow an adult child to care for his aging parent. The key for both documents is that they must have been drafted and signed while the elderly person still had legal capacity. If the elderly person has pronounced Alzheimer’s or dementia, she will be legally unable to sign off on such documents.
A Durable Power of Attorney (also called a General Power of Attorney) appoints someone to be your Agent. This means that person can speak on your behalf, sign documents on your behalf, and sign checks on your behalf, among other powers. One of the benefits of a Durable Power of Attorney (DPOA) is that it is customizable. You can limit the powers of your POA to make decisions about your finances and property. A Health Care Power of Attorney (HCPOA) is like a DPOA except that it is limited to medical decisions. Your HCPOA will be able to talk to doctors on your behalf, decide when you enter a nursing facility or hospital, and make determinations about your medical treatment. Like a DPOA, it is customizable so that you may limit or expand the powers of your HCPOA to make decisions about your medical care.
You can also decide when the DPOA powers begin. A DPOA can either have immediate power once the document is signed, or the power can be “springing” – meaning that the DPOA does not begin functioning as your agent until a certain set of conditions has been met. Usually, this condition is that doctors have determined you are no longer capable of making decisions for yourself due to mental incapacity caused by Alzheimer’s or dementia.
If you do not appoint a POA and you eventually suffer from an advanced disease that affects your capacity, your caretakers may need to initiate a legal process called “Guardianship” to obtain the authority to make decisions for your care. Unlike a DPOA which can be completed at your attorney’s office with a notary, a Guardianship is a process through the courts. In this process, the court will appoint someone to be a “Guardian” over an incapacitated person. The powers of a Guardian are less customizable and it’s a much more expensive process because of the court fees involved.
By including Power of Attorney documents in your estate planning, you can have the peace of mind of knowing your loved ones will have the ability to assist in your care when you need it.