How Does Power of Attorney Work for Elderly Parents?
Planning for your aging parents' care involves many considerations, but few are as important as establishing power of attorney (POA) before it's needed.
POA is a legal document that allows a designated person to make critical decisions on behalf of an elderly parent when they aren’t able to do so themselves. Without proper POA arrangements, families can face complicated court proceedings, treatment delays, and increased stress during already difficult times.
Key Takeaways
Establishing power of attorney before it's needed is crucial, as your parent must have mental capacity when signing.
Different types of POAs serve specific purposes, so choosing the right one for your situation is an essential part of advance care planning.
Obtaining a POA requires discussing your parent’s wishes, choosing which type of POA you need, and completing the legal paperwork.
What is power of attorney for elderly parents?
Power of attorney is a legal document that authorizes a person (called the "agent" or "attorney-in-fact") to make decisions for someone else (the "principal"). An aging parent can grant you the authority to handle financial matters, healthcare decisions, or both when they can’t manage these responsibilities themselves.
POA typically becomes effective either immediately upon signing or when triggered by a specific event (like incapacity). It ends if the principal revokes it, upon the principal’s death, or at a set expiration date defined in the original document.
Types of powers of attorney
There are different types of POAs, each of which grants unique abilities to the person making decisions on behalf of their loved one. Your options include:
Durable power of attorney: Remains valid even if the parent becomes mentally incapacitated, compared to a standard POA that would terminate when the parent loses decision-making capacity.
Medical power of attorney: Authorizes you to make medical decisions if the parent cannot communicate their wishes. This document can work alongside an advance directive or living will.
Financial power of attorney: Grants authority to manage financial affairs, including paying bills, handling investments, filing taxes, and managing property.
Limited or special power of attorney: Restricts authority to specific matters like selling a home or managing particular investments, with clear start and end dates.
Springing power of attorney: Becomes effective only when a specified event occurs, typically the parent's incapacity as certified by a physician. While offering protection against premature control, these can cause delays if they’re ever needed urgently.
How POA differs from guardianship and conservatorship
There are key differences between a POA and options like guardianship or conservatorship.
Guardianships and conservatorships are court-appointed roles that are granted after your parent has lost the ability to make decisions. A POA, however, is voluntarily established. As a result, guardianship proceedings can cost thousands of dollars in legal fees and take months to establish. It’s much cheaper and faster to complete a POA.
Moreover, POAs allow your parent to choose the agent making decisions, while guardianships and conservatorships require judicial oversight. They may appoint someone your parent wouldn’t have chosen for themselves.
Ultimately, a POA requires proactive planning; other options are reactive measures taken in the absence of planning.
When is power of attorney necessary for an elderly parent?
If you’re wondering whether it’s necessary to consider a POA for an aging parent, there’s a good chance that it may already be time.
Signs it's time to consider POA
These are a few signs that your parent may benefit from a POA soon:
Early cognitive decline indicators: Forgetting important appointments or people, losing trains of thought, or struggling with decision-making.
Financial management difficulties: Missed payments, bounced checks, unusual purchases, or vulnerability to financial scams.
Healthcare decision-making challenges: Trouble understanding treatment options, managing their medications, or remembering medical advice.
Other possible scenarios
A POA becomes essential in several situations, including:
Hospital admissions, especially if quick medical decisions may be needed.
Transitions to long-term care facilities like memory care, especially if they require signed contracts and payment arrangements.
Ongoing financial management, including investment decisions and tax filing.
Protection against financial exploitation or fraud, which is a significant threat to aging populations, especially if they’re experiencing cognitive decline.
Risks of not having POA in place
If your family member doesn’t have a POA in place when they need one, they’re at risk for the following:
An expensive court-appointed guardianship process, which may result in an agent your parent wouldn’t have chosen.
Family conflicts over critical decisions around your loved one’s care.
Treatment delays, especially if your loved one is deemed unable to make medical decisions on their own.
Financial mismanagement that can impact assets and investments.
How to obtain power of attorney for an elderly parent
There are a few important aspects to consider when setting up a power of attorney for a loved one. Let’s look at what they are.
Assess mental capacity
For a POA to be legally valid, your parent must have sufficient mental capacity when signing the document. This includes the ability to:
Understand the document’s purpose and effects.
Appreciate the situation and consequences.
Communicate a choice.
If there are concerns about capacity, a physician's assessment may be needed before proceeding.
Steps to create a valid power of attorney
To complete a valid power of attorney, you’ll need to follow these steps:
Have an open conversation with your parent about their wishes.
Choose appropriate POA type(s) based on their need; most aging parents benefit from medical and financial POAs, for example.
Obtain the correct forms for your state through an attorney, legal aid service, or state-specific templates from reputable sources.
Complete all requirements for making the document legally binding, which often includes notarization and potentially recording the document with the county’s office.
Work with professionals
If you’re considering getting a POA, a good first step is to consult with an elder law attorney. They can ensure that you’re getting the right type of POA for your parent’s specific situation, consult on potential requirements that long-term care facilities may have, and ensure that your loved one is fully protected.
How to choose the right agent
When choosing an agent to make decisions for your parent, keep in mind the following important criteria:
Select someone trustworthy with a history of responsible behavior and financial management.
Consider geographic proximity, especially for healthcare POA agents who may need to be physically present during emergencies.
Choose someone who understands your parents' values and will make decisions aligned with their wishes.
Name successor agents or co-agents in case the primary agent becomes unavailable or unable to serve.
Consider appointing different agents for financial and healthcare decisions based on each individual’s strengths.
Managing power of attorney responsibilities
Once appointed, agents must do the following:
Maintain detailed records of all financial transactions.
Keep the principal’s assets separate from their own.
Avoid conflicts of interest.
Follow the principal’s known wishes.
The agent serves as a fiduciary, meaning they must act solely in the principal's best interests, not for their own benefit.
In the case of healthcare POAs, agents must:
Maintain medical and hospital records
Decide the medical treatments, procedures, and services the principal receives
Decide the long-term care arrangements per the principal’s stated wishes
Special considerations
In certain situations, it becomes imperative to create a power of attorney urgently, following an Alzheimer’s diagnosis, for instance. At other times, you may have to create more than one POA to maintain validity across state lines. Let’s look at what this means. When setting up a power of attorney for your aging parents, you may need to account for some considerations like whether they have dementia or you’re creating a POA that needs to be accepted in multiple states.
POA for parents with dementia
Timing is critical with dementia diagnoses.
People with early-stage dementia often retain their decision-making capacity and can execute valid POA documents, but this capacity diminishes over time. As a result, your loved one will be asked to take a capacity assessment on the day they sign a POA to ensure they can consent.
The Alzheimer's Association recommends establishing POA immediately following diagnosis, while the parent can still participate meaningfully in the process.
Finally, some care facilities require specific POA language to handle resident affairs, so review POA documents with memory care administrators before a need arises.
POA across state lines
State laws governing POA vary significantly. Over half of U.S. states have adopted the Uniform Power of Attorney Act, which creates some standardization. That said, some important differences remain.
A POA valid in one state is generally recognized in others, but financial institutions in some states may reject unfamiliar forms. Consider creating multiple POAs if you may need them across state lines, such as when you move with your loved one to a new state.
Revoking or changing a power of attorney
As long as your parent maintains their mental capacity, they can revoke or modify their POA at any time.
They can do this by:
Creating a written revocation and having it notarized and signed by witnesses.
Physically destroying the original document if they haven’t given it to anyone else.
Executing a new POA that explicitly revokes the previous one.
All institutions and individuals that received the original POA must be notified of any changes. This may include lawyers, family members, healthcare providers, and memory care or nursing home facilities.
Bottom line
Establishing power of attorney for aging parents is a crucial step in ensuring that you’re able to honor their wishes and properly manage their affairs if they become unable to make decisions for themselves.
Having these documents in place before they're needed will provide peace of mind and can prevent costly, time-consuming court proceedings. Start the conversations early, involve your parent in the planning process, and consider professional guidance to ensure these important legal protections are properly established.
FAQ Section
How much does it cost to set up a power of attorney for an elderly parent?
DIY power of attorney forms typically cost $20-100, while attorney-drafted documents range from $200-500 or more, depending on complexity and location.
Can my parent revoke power of attorney if they change their mind?
Yes, if your parent is still mentally capable, they can revoke power of attorney at any time by creating a written revocation, destroying the original document, or executing a new POA that explicitly revokes the previous one.
What's the difference between a medical and financial power of attorney?
A medical or healthcare POA authorizes the agent to make healthcare decisions if your parent cannot communicate their wishes, while a financial POA grants authority to manage financial matters like banking, investments, and bill payments.
Can I get power of attorney for a parent with dementia?
It depends on the stage of dementia. In the early stages, many people retain sufficient mental capacity to execute valid POA documents. Once dementia has progressed significantly, guardianship or conservatorship through the courts may be the only option.
Sources
Alzheimer’s Association. (n.d.). Legal documents. https://www.alz.org/help-support/caregiving/financial-legal-planning/legal-documents
Duke University School of Law. (n.d.). How to revoke a power of attorney. https://web.law.duke.edu/sites/default/files/clinics/healthjustice/how_to_revoke_a_power_of_attorney5.pdf
Experian. (2023, February 17). Financial power of attorney vs. medical power of attorney. https://www.experian.com/blogs/ask-experian/financial-power-of-attorney-vs-medical-power-of-attorney/
LawDistrict. (2023, May 25). Is a power of attorney valid in another state? https://www.lawdistrict.com/articles/poa-valid-in-another-state
National Center for Biotechnology Information. (2022, December 15). Legal capacity and medical decision-making in older adults: An overview. National Library of Medicine. https://pmc.ncbi.nlm.nih.gov/articles/PMC9815424/
Policygenius. (2023, September 20). How much does a power of attorney cost? https://www.policygenius.com/estate-planning/how-much-does-power-of-attorney-cost/
Sacramento County Public Law Library. (2020, July). Determining competency to sign a durable power of attorney. https://saclaw.org/resource_library/determining-competency-to-sign-a-durable-power-of-attorney-2/