?Appointing a Power of Attorney

Appointing a power of attorney establishes a trusting relationship between two people. The principal is the term used for the person making the appointment. The attorney in fact accepts agent authority to fulfill legal responsibilities related to medical or financial decisions.

• The intent of power of attorney relationships is to fulfill the principal’s wishes, often an aging parent or a spouse, when help is needed.
• The duty of the agent or attorney in fact is to act in the best interest of an aging parent, spouse, family member, or friend to oversee health care and to protect and preserve property and money.
• Power of attorney is a fiduciary relationship of confidence and trust.

Appointing a power of attorney is one of the most important decisions you will make in life. Learn, why, who, when, and how to appoint a power of attorney.

Ethical Decisions About Life-Sustaining Treatment

When aging parents plan ahead to create legal documents and power of attorney forms the agent can act on behalf of the principal when necessary. But. what happens when POA forms are not created, and a tragic accident or severe health issue happens, making it impossible for a loved one to make healthcare decisions?

If you are thinking, “I’m too young,” or “I’ll think about this later,” watching this video may change your mind. David Drummond shares his story of being in a tragic accident. Learn how NOT having power of attorney documents or a living will leave medical decisions in the hands of others.

Warning: This Video Depicts a Real-Life Story. The Contents May Be Disturbing

Appointing a durable power of attorney generally involves planning for a future-oriented relationship. Adults initiating estate plans select a medical power of attorney and financial power of attorney to provide support when advancing health issues, illness, or frailty occurs.

Persons may execute the documents while in the hospital at the time of need if not done prior to hospitalization. Executing power of attorney documents in the midst of a crisis in a short period of time is not the ideal situation.

It is important when appointing a power of attorney to take the time to discuss the responsibility and powers granted to the person being appointed. Medical and caregiving knowledge is beneficial for the person appointed medical power of attorney.

Financial power of attorney, depending on the value of property and assets, benefits from appointing a person who is experienced working with financial affairs. This may include working with investment brokers and managing property. Consideration of successor agents is also important so that documents can remain in place if multiple agents decline to serve.

Risks of Appointing the Wrong Agent

As a professional fiduciary and care manager, I have been involved in situations where parents appointed an adult child, with no experience or ability to manage money, only to find their bank accounts drained. Better to appoint a professional with the expertise to manage money than turning over the security of hard-earned money to an adult child or friend with poor financial management skills.

The decision about who to appoint as financial power of attorney should be given a thoughtful consideration. Estate planning attorneys can provide recommendations for professionals who act in these roles if concerns exist about appointing a family member.

What Decisions Do Medical Powers of Attorney Make?

Individuals appointed as medical power of attorney in fact should take this appointment very seriously. Agents under a medical power of attorney make life and death decisions. Talking about end-of-life wishes and advance planning for burial or cremation are best discussed when parents are healthy.

The MDPOA may have to be constantly available to oversee and coordinate daily care when health issues escalate. The agent can hire support that includes in-home caregivers and consider placing a parent in an assisted living, memory care community, or nursing home.

Having extensive knowledge of prior medical care, medications, physicians, hospitalizations, care preferences, and other information is extremely important for a medical power of attorney to serve effectively. At the time of assignment, this information should be collected and retained in a file in the event of an unexpected emergency.

The ability to advocate, coordinate care, and communicate to doctors, nurses, and other medical professionals is vital. A timid agent can who lacks advocacy skills can make harmful decisions or mistakes. Collaborating with the healthcare system that can be biased, uncaring, and insensitive to the needs of older adults, especially those diagnosed with dementia can be intimidating for the inexperienced.

Who Can Serve as POA?

Anyone over the age of 18 can serve as medical and financial power of attorney. Family members have traditionally been the first choice to serve as power of attorney; however, this trend is rapidly changing. Professional fiduciaries are more commonly being appointed for a number practical of reasons.

A plan to establish a fiduciary relationship with a professional to serve as power of attorney is relevant when children live at a distance or reside locally but have not proven to be responsible. In many situations, parents do not wish to burden children with the power of attorney responsibility. There are also situations where parents do not trust adult children to serve in these roles.

Why Professional Fiduciaries Are Appointed

Appointing a power of attorney who is a professional eliminates the potential of hurt feelings of one child being appointed over another to serve in a fiduciary capacity. Family jealousies exist and children do not always see eye to eye. A professional power of attorney appointment eliminates the possibility that a child assigned power of attorney will act in ways that do not support the parent’s best interest to protect health, property, or money.

Statistics indicate that the majority of elder abuse presenting in financial abuse is by family perpetrators who are children of the elderly parent. In many situations, adult children with control of parental finances use the funds for their own use to pay monthly bills or take out loans that are rarely, if ever, repaid. There may be hesitation to use funds to pay for the care of an aging parent because this can reduce the amount of an inheritance.

Parents with cognitive impairment, like Alzheimer’s disease, are vulnerable to family members or professionals who take advantage of finances. Adult children may be more interested in the parent’s money than in committing to the best care possible for the parent with the associated expenses. Money for inheritance is a significant temptation for adult children who may feel entitled or who still in middle age rely on parents for financial support.

Power of Attorney Financial Abuse and Medicaid Complications

Prior misuse of money by a power of attorney who is an adult child will complicate care for the parent at the time a Medicaid application is submitted. Medicaid applications require a very clear explanation and documentation of how money is spent on behalf of a parent. Reasons for financial abuse are why it is important to carefully choose when appointing a power of attorney.

Applications may be declined by Medicaid due to the actions of the child who irresponsibly spent money. The purchase of vacations, multiple vehicles when the parent no longer drives, renovations to the home of the child where the parent does not live and similar expenses may be questioned for benefit.

Funds generally must be repaid by the child before approval of the application. This is usually unlikely when the child has poorly managed their own finances and the finances of the parent. An appeal may be made but is not always guaranteed to succeed.

In circumstances of financial abuse by adult children, parents refuse to press criminal charges against their own children. The legal system finds it challenging to press charges against family members who have been assigned power of attorney by a family member because of the challenges of winning in court.

Power of Attorney for Second Marriages and Other Family Situations

Individuals who have never married or are widowed may not trust brothers, sisters, or friends to act as a power of attorney. Individuals involved in second marriages are more frequently appointing professionals. Appointing a power of attorney is even more important for single individuals who want peace of mind about medical and financial decisions.

Appointing a spouse from a second marriage to be power of attorney may be uncomfortable due to negative feelings by adult children from the first marriage. Family disagreements and battles are unpleasant situations when disagreement exists over children or stepchildren appointed as power of attorney. Legal battles that extend to court hearings occur.

The decision of who to appoint as power of attorney is a personal decision. Some parents feel guilty when choosing a professional fiduciary; however, realize that due to family circumstances this appointment the best choice. Single individuals who are proactive, appoint professionals so that the power of attorney documents are in place prior to the time of need.

Why Appointing Successor Agents is Important

It is important to appoint primary and secondary agents with the provision that if one is unable or chooses not to act a successor may be appointed without having to execute new documents. Placing the standard statement in estate planning documents about the power of attorney being appointed the guardian or conservator is important to avoid expensive legal fees and future court proceedings.

If it is known that family members will cause potential issues surrounding medical care or financial matters, information about this concern can be written in the document excluding involvement. Discussing these concerns with an estate planning, probate, or elder law attorney familiar with estate or probate litigation is critical. Additionally, when appointing a power of attorney, the principal should discuss these concerns with the agent to avoid surprises about potential family issues.

The clarity in the direction about concerns may eliminate potential disagreement by family members about what a loved one would have wanted for medical care or financial expenditures. Wills may also be written and the signing recorded on video to avoid family disagreements after death. While the hope is that family members will get along at the time of need this is not often the situation. As a guardian, agent, or personal representative, I have been involved in many contested court hearings about wills where families objected to a will.

Selecting a Professional Power of Attorney

Fiduciaries have professional designations to support their expertise to serve as a power of attorney agent. Professional designations for fiduciaries may include membership in the National Guardian Association as a certified guardian, accredited investment fiduciary, or registered fiduciary. These designations require continuing education and participation in best practices to ensure participation that meets guidelines and standards to support the conduct of a fiduciary relationship.

Years of experience, college education, and affiliation with healthcare and financial associations are a consideration in appointing a medical or financial power of attorney. Many estate planning, elder law, and probate attorneys work with professionals who they can refer for an interview. Make certain that you meet the professional power of attorney candidates in-person to ensure a good personality match.

Many states have specific guidelines for oversight of power of attorney, guardians, and conservators. This oversight includes a review of compensation and specific requirements for documentation regarding the use of funds and medical care. All expenses are documented as well as all communication involved in the support of medical care and this information is shared with clients or other individuals who may be designated to provide oversight.

At the time documents are executed for power of attorney by probate, elder law, or estate planning attorney copies should be provided to the power of attorney. This ensures that if an emergency were to happen, the power of attorney has documents to take to the hospital emergency room. In the event that finances require management, the power of attorney would also have access to bank accounts.

All individuals over the age of 18 should have medical power of attorney and financial power of attorney documents as well as a living will. One never knows when an unexpected event might occur, requiring the assistance of a family member or professional fiduciary assigned with the responsibility to make healthcare decisions, oversee well-being, financial matters, and property.

© 2018, 2021 Pamela D. Wilson, All Rights Reserved.Pamela D. Wilson, MS, BS/BA, CG, CSA is a national caregiving subject matter expert, advocate, and speaker. Twenty years of experience as a court-appointed guardian, power of attorney, and care manager serve as Wilson’s platform to help organizations increase awareness of caregiving as an essential role in life. She is a caregiving speaker and consultant who designs caregiver education and awareness programs and courses, training for corporations and groups, and offers individual consultations for aging adults and family caregivers. Wilson hosts and produces The Caring Generation® podcast is the author of The Caregiving Trap and is active through social media. To contact Pamela complete the Contact Me form on this website.