When parents age, they often lose the ability to take care of themselves and need assistance managing their affairs. Before this occurs, it’s a good idea for them to give someone else the legal authority to help them in certain situations by signing a power of attorney.
Elderly parents may need assistance with routine tasks like paying bills and signing important documents. If you have a loved one who can’t do these things on their own, a power of attorney allows you to handle these issues for them. If your parent ends up in the hospital and can’t communicate, a power of attorney can also help you make decisions about their health care.
Knowing how a power of attorney works and how to get one can empower you to provide your loved one with the help they need.
How Does Power of Attorney Work?
A power of attorney (POA) is a legal document that lets your loved one (the principal) appoint a trusted person (called an agent) to manage their affairs to the extent that they choose.
There are several kinds of power of attorney documents, including:
- Durable and non-durable power of attorney
- Financial power of attorney
- Medical power of attorney
- Limited power of attorney
By selecting the right type of power of attorney, the person creating the POA can decide when the agent’s powers begin and end and what actions the agent is allowed to take on their behalf.
For example, a durable financial power of attorney lets an agent manage some or all of the principal’s financial affairs only if they become incapacitated.
A medical power of attorney, on the other hand, gives the agent power over the principal’s important medical decisions (like whether to receive certain treatments or medication) if they become unable to communicate with their healthcare provider.
How to Become Someone’s Power of Attorney Agent
As long as your parent has the mental capacity, they can choose an agent to legally represent them. Depending on your situation, you may wish to become the power of attorney agent for your elderly parent or loved one, or someone else may fill this important role. Just keep in mind that you can’t influence someone else’s decision about who they choose as their power of attorney agent.
Learn how to get power of attorney for someone by following these steps:
Step 1: Ensure your loved one has the capacity to execute a POA
You must first ensure that your loved one has the legal capacity to execute a power of attorney. Legal capacity refers to the ability to make legal decisions for oneself. A person could be declared incapacitated for a number of reasons, including:
- Unconsciousness
- Dementia
- Alzheimer’s disease
- Intellectual disability
If your parent or loved one can’t understand what they are signing, they may not have the capacity to execute a POA.
If your parent is already unable to execute a power of attorney due to incapacity, you will likely need to pursue legal guardianship instead to help them manage their affairs.
Step 2: Determine what type of power of attorney they need
There are several kinds of powers of attorney, and each one gives the agent slightly different powers. Depending on their needs, consider getting one or more of the following power of attorney documents for elderly parents:
- Durable Power of Attorney: A durable POA allows the agent to act on the principal’s behalf if they become incapacitated. By contrast, a non-durable POA takes effect when signed (or at the start date indicated on the document) and will become void automatically if a doctor determines the principal is incapacitated. Most of the POAs listed here can be made durable.
- Medical Power of Attorney: A medical POA allows the agent to make health care decisions for the principal. The principal can make sure the right person who knows what they would have wanted can help communicate their healthcare wishes if they become incapacitated.
- Financial Power of Attorney: A financial power of attorney allows the agent to manage and handle the financial affairs of the principal. The principal can give the agent as much or as little power as the principal wishes.
- General Power of Attorney: A general power of attorney gives the agent broad powers over the principal’s financial, business, real estate, or other legal matters. This is commonly used to permit banking on a person’s behalf or to allow the agent to enter into contracts. This provides significant flexibility for the agent to take care of the principal’s affairs but also gives the agent more power.
- Limited (Special) Power of Attorney: A limited power of attorney gives the agent very specific powers as listed in the form. This type of POA is commonly used to allow the agent to complete one or more routine tasks for the principal.
- Springing Power of Attorney: A springing POA only goes into effect upon a specific date or the occurrence of a certain event or condition as noted in the document. This makes it useful for those who want to plan for future events.
Keep in mind that the principal can create multiple powers of attorney with different agents to cover a range of potential future needs.
Step 3: Discuss what authority they want to give the agent
Your parent or loved one may want to create a POA for many different reasons. Although it can be unpleasant to think about losing the ability to manage one’s own affairs, try to discuss what your loved one would want to happen in different scenarios like if they lose mobility and need help with routine transactions or if they become incapacitated.
Taking the time to plan ahead and discuss potential future challenges will help all parties understand how to fill out the power of attorney form.
Once the principal has decided what powers to give their agent(s), they can write any specific instructions in the form. Because every person’s situation is different, your loved one can choose what powers they will grant the agent based on their wishes and needs.
Step 4: Complete and sign the power of attorney form
A power of attorney form can be customized to your situation to give your loved one a sense of security over their affairs, even if they lose the ability to communicate.
Depending on your state, the principal will need to sign the power of attorney form in the presence of witnesses, a notary public, or both. You may also be required to provide copies of the POA to those involved (like agents and healthcare professionals).
If you or your loved one are unsure about any aspects of the document, make sure to seek legal counsel before signing.
How Can You Get Power of Attorney for Someone Who is Incapacitated?
Your loved one can only enact a power of attorney form when they have the mental capacity to understand what they are signing and the legal ramifications of the document. Those who already suffer from dementia or are otherwise incapacitated will not be able to sign a power of attorney.
Instead, family members can file a petition for legal guardianship over their loved one. This petition is a court request seeking the legal authority to take over the affairs and care needs of the incapacitated adult. Be sure to check your state’s specific requirements if you decide that pursuing legal guardianship is the best choice for you and your loved one.
