What a Durable Power of Attorney Can Do

Helping aging parents with daily tasks can become a challenge, if the parent has limited mobility. A trip to the bank, for example, will require coordinating the adult child’s responsibilities with the aging parent’s limitations. If the parent has more energy in the morning, for instance, but the adult child is working, this can become a bigger challenge than if the adult child can go to the bank on behalf of the parent, when it’s convenient for them — at a lunch break, for instance.

In this situation, as noted in The Daily Sentinel’s article “Tools to help your aging parent,” having a durable power of attorney will help. This type of power of attorney is a legal document that permits a child or other named individual to handle certain responsibilities, like banking. Granting a power of attorney to a child doesn’t mean giving up total control, which is often a concern of aging parents. It simply means that the child is now legally allowed to handle these tasks.

The durable power of attorney is different than the “general medical power of attorney.” As implied by its name, this is limited to making decisions about the parent’s health care and is usually used only when the parent is not able to make these decisions on their own.

There are more serious situations, where neither of these types of power of attorney is enough, such as when the parent lacks capacity because of dementia or a medical decision. It is necessary to protect the parent from themselves or anyone who might try to take advantage of their lack of clear mental capacity. This may require that an adult child needs to be appointed as a guardian for their parent.

Being appointed a guardian can be a very emotional event, since the parent and child are not just switching emotional roles, but legal roles. The parent no longer has the capacity to make significant decisions, because a court has found that they no longer have that ability.

You may have heard the term “conservatorship” used. It is similar to guardianship, except that the conservatorship only allows for control over the parent’s financial affairs.

Guardianship is taken very seriously, as it should be. This removes an adult’s right to make any kind of decision on their own. In some states, including Colorado, the court must first be convinced that the parent is unable to effectively receive or evaluate information or to make or communicate decisions. They must be deemed incapacitated, before guardianship can be established. Once that standard has been met, then guardianship is established. If there is a doubt about incapacity, then no guardianship will be established, and the family is faced with finding other ways to help the aging parent.

Aging parents and their children face many issues that are best addressed before incapacity becomes an issue. If the family does not have a plan for the aging parent’s care, it is recommended that the family make an appointment with an estate planning attorney to discuss the various options.

Reference: The Daily Sentinel (March 24, 2019) “Tools to help your aging parent”

Why Can’t My Husband Go to the Doctor to Help Me?

Health care privacy laws have created situations for many well-meaning people that become really annoying. If one spouse is ill and the other spouse is more than willing to take a ride to the doctor’s office to get a needed document, in many instances they cannot—even if the doctor or physician assistant knows them both.

It seems illogical that the person who is named as another person’s agent under an Advanced Care Directive can’t take on these tasks, says the Monterey Herald in the article “Senior Advocate: Can my health care agent help me now?” After all, if they can make decisions for you when you’re incapacitated, why can’t they do something as simple as get a copy of your medical records for a second opinion?

However, the Advance Health Care Directive isn’t the document that gives someone access to all of your medical information. The Advance Health Care Directive is usually the document that gives your named agent the power to make decisions about end-of-life or life-saving decisions. It’s the document that is used if a decision must be made about taking a person off of a respirator or a heart machine.

If you want to give someone the ability to run health-related errands for you or speak with your healthcare providers, it is possible to have an Advanced Health Care Directive prepared, so it becomes immediately effective, regardless of your capacity. This can be used to give a spouse the ability to have access to all your medical records and information.

If you are ill and want to have your spouse involved in your medical care, even if you are not incapacitated, the “effective immediately” option will let your spouse act on your behalf. You won’t have to wait for a physician to state that you are incapacitated, before an Advanced Directive can take effect.

Since an Advance Directive usually names an alternate agent, you can have the document prepared so your spouse is able to be effective anytime, but the alternate agent can be limited to when your spouse is not able to help, and you are unable to speak for yourself because you have become incapacitated.

Keep in mind that the Advance Directive, whether effective immediately or only upon incapacity, has nothing to do with your finances. That requires a different document, or documents, depending upon your estate plan and your unique situation.

An estate planning attorney will be able to craft Power of Attorney documents for finances, trusts or other assets. All these documents should be prepared, while you are still competent to understand how the documents work and what powers they give to your spouse or another named agent.

Reference: Monterey Herald (Dec. 22, 2018) “Senior Advocate: Can my health care agent help me now?”