Do you have questions about Power of Attorney? Expert answers questions.

[AARPTeri]

AARP Caregiving Expert Series:  Week 1 Caregivers and the Power of Attorney

March 4-10, 2019

Welcome to week one of our four week Caregiving Expert Series here in the AARP Online Community, Caregiving Forum.  Our AARP Expert, Amanda Singleton, is here to help with Legal and Financial questions you have as a Caregiver.

This week’s topic is Caregivers and the Power of Attorney

A health care power of attorney delegates a spouse, trusted family member or friend to make health care decisions for you if you are unable to do so. Have questions about power of attorney?  Let us help you find answers from our expert!

[TeriC1963]

Greetings,

A California worker comp judge appointed me Guardian ad Litem and Trustee to my aunt who is incapacited due to severe dementia. Will these documents allow me to file taxes for my aunt?

Or do I need a POA or Conservatorship?

[valleystreamgirl]

Hello,

My dad is 82 and lives with his wife. He is still fairly active but forgetful and is currently taking medication for his memory. My dad won’t talk about care for himself as he ages. I handle his doctor’s appointments and his personal bills. I think I can talk him into signing a health proxy but not a power of attorney. Are they’re different power of attorney?

Thank you,

Lisa

[AmandaSingleton]

Hi @valleystreamgirl and thanks for your post.   I would definitely encourage you to post in the Caregiving Forum about how we communicate with a care partner who may be resistent to conversation about the future.  I think you'll find lots of great advice there, both from experts and caregivers in the trenches.  You're in good company!  

Look in this thread for my post to Michael earlier today where we started talking about the different kinds of powers of attorney.   If you can open the conversation with your father (perhaps with him and his wife, an attorney, or trusted friend or advisor) maybe talk about the different kinds.  Talk about the alternatives to power of attorney (for example, if something catastrophic happened, would you need to petition to a court for guardianship?  That can be expensive.  If it is contested, it can be very expensive).  Sometimes, a conversation about what can happen if we don't plan can be enough to prompt a person to action.     

Although not complete by any means, there are ways that your father can make it easier for you to help him with his finances (for example, if you had a joint account set up to pay his bills).  There are drawbacks to this though where either of you could do whatever you wanted with that joint account and there is no oversight to it.  And that would only help you if circumstances don't change and he doesn't need any more help.  And the one thing we can be certain of, is that circumstances always change.  

My hope is that you can get to a place where you have a discussion about the future and what your father's wishes are.  Not planning is as much of a choice as planning, but with absolutely zero control over the outcome.  

[lp6064]

Does a durable power of attorney need to be notarized?

[AmandaSingleton]

@lp6064 

Good morning, lp6064, and thank you for your question.  Here's the "lawyer answer" to the question of whether a durable power of attorney requires a notarization:  it depends.

Every state has its own set of rules and requirements related to durable powers of attorney.  Some require just witnesses, some require witnesses OR a notary, and some (like my home state of Florida) require witnesses AND a notary.   

Not completing the witness or acknowledgment (notary) requirements could make the document invalid or not acceptable, so it is very important to follow the formality requirements exactly.  

[lp6064]

Thanks for your response.  We're in Pennsylvania, how would I find out what is required here?

[AmandaSingleton]

Hello @lp6064 :  I am going to attach a link that will bring you to the Guide to Legal Issues for Pennsylvania Seniors.  It is published by the PA Bar and may be helpful for you on a variety of topics, including powers of attorney.  Please note that it was published in 2016-2017, so some information may be outdated (so, for example, if it talks about estate tax, those limits change every year and that information will be outdated).  Here is the link:  http://www.pabar.org/pdf/guidelegalservicessc.pdf

To folks in other states reading this, you may wish to look at your state's bar association's website to see if it publishes similar helpful information for consumers.  Also, contacting the National Academy of Elder Law Attorneys may be useful in your search for information.

Take care, and thank you for your post! 

[GailL1]

@AmandaSingleton 

When discussing POA - healthcare or financial - it might also be worth mentioning that Social Security and Medicare actually don't use this type of document in authority granting - other forms have to be submitted or authorized by the beneficiary.

For MEDICARE - Authorized Representative assignment - the easiest way is for the beneficiary (or by their designate) to  set up a myMedicare.gov account and fill in the information about who Medicare can discuss this account with under authority of the beneficiary (Medicare.gov - Authorized Representatives) or who can have access to this account.

Or have the beneficiary (if cognitive) or authorized designate complete this form

Medicare.gov - Medicare Authorization to Disclose Personal Health Information

For Social Security - Representative Payee Assignment - Social Security's Representative Payment Program provides benefit payment management for the beneficiaries who are incapable of managing their Social Security or Supplemental Security Income (SSI) payments. For a beneficiary who are incapable of managing their own benefit, SS will either assign one (usually an organizational group that does this for many).   Or the beneficiary before becoming incapacitated or their designate with legal docs (POA / Conservatorship/Guardian ) can assign one.

SSA.gov - A Guide to Representative Payees

I believe this too can be set up via the mySocialSecurity.gov account process, I think - been a longtime since I served in this capacity.

Both of these are needed if legally handling the affairs of another because otherwise you are not suppose to have access and sometimes access is necessary - even for the simpliest of things.

[AmandaSingleton]

Hi @GailL1 , and thank you for your post!  Without delving too much into the arena of public benefits, which are worthy of their own discussion:   A power of attorney may grant the agent/attorney-in-fact the authority to act on another's behalf when it comes to benefits from Social Security, Medicare, Medicaid, or other governmental programs or military service.  This can include preparing, signing, and filing claims, suing for, settling, or abandoning claims, and collecting, receiving, and depositing benefits, and exercising any powers that a person could exercise if they were not under a disability or otherwise unable to.    I would recommend that you look for these kinds of powers to be granted in a durable power of attorney, because they can assist the agent/attorney-in-fact greatly in their caregiving duties.  

[TabathaA458229]

My mom who is turning 73 is disabled, on oxygen, has problems walking and basically just sits in her chair all day. She’s getting forgetful and will say or do some off the wall things. Other times she seems normal. I think she’s getting dementia. She hasn’t been wanting to shower she says she sponge bathed but hasn’t washed her hair or shower since Christmas! She won’t let me clean her room or wash any of her clothes. She was in hospital in Oct for few days. That’s when I went in her room n cleaned her bedding and some laundry but she’s hoarding n it was just too much for me. I’m 51 and been fighting stage 4 cancer though I look very young I can’t do like I use to. How do I get power of attorney? She I am only child and my dad passed years ago. She never went to her follow up from her hospital stay, she schedules appt’s but then cancels them the day of. She comes up with excuses that weathers been bad even if it hasn’t. Or she lies and says they called and cancelled. I tell her I can take her but she gets mad and refuses. We live together but the house was left to her in her name. I had to file a bankruptcy for her because when I moved back here I found out she did a reverse mortgage but I think the money went to scammers. As many bills including property tax wasn’t paid! She has used black permanent marker to try fill in the areas on the window because she claims someone looking in. She was hanging up plastic bags to cover window. She gets mean. But In front of other family she acts normal. My daughters say to get power of attorney bcuz she’s not thinking right and it’s getting episodes more often. Two days ago she left in her car that had a completely flat tire, she knew it did and my daughter and myself told her not to drive it until we buy new ones. She took off n then I had voicemail that she needed me to pick her up but she never said where she was. I was in panic calling my daughters and family members to see if she contacted them. I called her cell phone 30 times and she would not answer. I went to the two Walmart stores I know she frequents because she don’t drive far and has only certain places she goes too. She was not there or the auto dept. I had them looking for her! She finally called she was home! She still insist she told me in message but I played it back for her. She told my daughter totally different story. What do I need to get power of attorney, can I get her out of this situation with reverse mortgage? I think she was not in state of mind when they pulled this on her. This is very stressful as I can’t get her to go to her much needed doctor appointments, she tells people she can’t do this or that because she’s been in and out of the hospital- last hospital stay was October 2018. Then she tells her oxygen company n random strangers that call her cell phone that she’s active and picks her grandkids up and she out and about. Not true- she rarely goes anyplace nor is she able to clean or upkeep herself or the house. 

[AmandaSingleton]

@TabathaA458229 

Hi Tabatha:  Thank you for your post and your question.  First, please know that I am wishing you a complete restoration of your health.   Stage 4 cancer alone is enough on your plate and I hope that you can attend to your own healing and recovery.   I also want to mention that you may want to put this post in the general Caregiving forum.  There are lots of points you raise in your post that I believe the other Caregiving Experts could address too (particularly brainstorming some options with you for senior services and ways you can get your mom some help as she's living independently, but clearly struggling).  

There are a few flags in your post that we should consider.  Your mother is disabled and has medical needs.  She is not following through with her medical care.   She is neglecting hygeine and home.  There's a question that she may have been a victim of exploitation or financial elder abuse.  There are also indications of paranoia/concerning behavior.    Generally, we all have the right to make bad decisions for ourselves, but bad decisions and self-neglect that may require intervention are different things.

I would one hundred percent consider going to see an elder law attorney who is licensed in your state.  They can help you parcel out what the options are for your mom and for you.   

A power of attorney is something that your mother would have to choose to do.  She may not wish to.  Alternatively, she may not be legally able to.  Does she have a cognitive decline diagnosis or has the question come up of whether she is lacking competence/capacity with her medical providers?  I ask because there may be other options, albeit more restrictive than the power of attorney.  For example, a guardianship may be the more appropriate or necessary choice.  

This is not an easy situation and I wish you and your mom all the best of luck for better days ahead.

[TabathaA458229]

Thanks for response. I think it’s beginning dementia but not sure how bad. I will call a attorney to get further advise. I know this can be difficult as I have a friend who just went through this with his father. 

[AmandaSingleton]

Thank you @TabathaA458229 .  Remember that just because a person has been diagnosed with dementia, it does not necessarily mean that they don't have the legal ability to complete a document like a power of attorney.  The attorney you work with should be able to work with your loved one to discern whether they are capable of completing documents.  Doctors can write letters on their patients' behalf as well if competence is an issue.  Outside of this series, I post in the Caregiving Forum regularly, so please do come back to update us on your progress.  Wishing you the very best.

[MichaelR56369]

Hi ,
I am a caregiver and uncle to my 28 year old niece who was born physically and mentally handicapped. she requires 24/7 care. As her legal guardian of the last 5 years I have been asked a handful of times if I had power of attorney. I was under the impression that I did not need it. Is this so? Thank you in advance

SORRY !    I just saw this was for March 4-10

[AmandaSingleton]

Hi @MichaelR56369 and thanks so much for your post!  First, I'm not able to give you specific legal advice for a variety of reasons, but we can have a general conversation about powers of attorney and guardianships (sometimes called conservatorships or committees).  If you've seen my other posts, you'll note that we always talk about how every state has its own set of rules and regulations.  This means that guardianships in Florida (where I live) can function very differently than guardianships in your state.  So, to your point: I'd be curious what kind of guardianship you have for your niece (for example, here in Florida, the guardian can be appointed over a person (health care and the like) or over a person's property (assets and financial affairs) or both), the circumstances when someone asked if you had power of attorney, and whether your niece had or has what's called "legal capacity" to make a power of attorney.

Let's also talk about different types of powers of attorney, for everyone reading this post.  You will hear different terms for similar documents, depending on the place you live.   Some people think of a power of attorney only in relation to health care (or will call it a health care power of attorney).  There are many places online you can read about these.  For example:

• See this American Bar Association Simple Guide for "Bare-bones" Health Care Powers of Attorney (which is designed to meet the requirements of most every state and includes a form that is available in English and Spanish)
• See also this AARP State-by-State Guide for Advance Directives.

We will talk more in-depth about health care advance directives in future weeks.  

The other type of power of attorney we are discussing is a power of attorney that names a person (often called your agent) who can handle your business, legal, or financial affairs.  These can be very limited and used for a certain task like selling a home or very broad and made "durable," which means the document can still be used by your agent if you are somehow incapacitated or incompetent in the future.  In many places, a well-crafted durable power of attorney can be very useful in avoiding a potential guardianship because it possibly could grant all the authority to the agent that a guardian would be appointed to have.  Also, on occasion, you see health care powers wrapped in with a full durable power of attorney.   It simply depends on where you live and what the laws and practices are.   You will not see these forms as much online as you see the health care specific documents; they are very powerful and technical and it is so important to ensure that they meet the laws of your state.