Get Help With Estate Planning Matters
Of course, the best advice is not to wait until it may be too late to engage in proper legal planning. If possible, make a point of having these conversations with family members while they are still of sound mind and able to comprehend exactly what they are signing and why. These discussions can be difficult, but an experienced elder law attorney can help with this process. If a loved one has procrastinated on their legal preparations, an attorney can also determine if they meet legal competency requirements and even help with guardianship proceedings.
When Powers Of Attorney Start And End
A power of attorney comes into effect as soon as it is signed, however it does not have to be used right away if you do not need help yet. Make sure your attorney knows when you want him or her to start acting on your behalf.
If you prepare a limited power of attorney for a specific purpose or a specified period of time , your power of attorney will expire when the stated tasks have been completed and/or on the end date noted in the document.
If you instead prepare a general attorney, subject to some exceptions your power of attorney will normally continue in effect indefinitely until you revoke it or until you or your attorney die . Also, unless you have created an enduring power of attorney by including an enduring clause as discussed above, your power of attorney will end if you become mentally incapable.
What Is Power Of Attorney Abuse
Power of attorney allows someone to make financial and legal decisions for another person. Those with power of attorney are expected to act in the best interest of those they represent , but this does not always happen.
Agents can sometimes use the power of attorney for their own financial gain by stealing money from the principal. This is known as power of attorney abuse.
Seniors are especially at risk of power of attorney abuse because:
- They may have mental or physical impairments that prevent them from managing their own well-being
- They may give their power of attorney to someone they cant trust
- There is generally poor regulation/accountability for power of attorney
According to the American Bar Association , powers of attorney are usually not subject to any oversight by a court or a third party. This means those with power of attorney can abuse it for months or even years before getting caught.
If you believe that your loved one may be at risk of power of attorney abuse, it is important to know the signs and take action.
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Scenario : The Person Plans Ahead And Has The Necessary Powers Of Attorney In Place
This is the best-case scenario when a person completes the necessary powers of attorney before dementia becomes an issue or if their doctor is able to certify that theyre still mentally competent.
Anderson says there are multiple benefits when advance planning is done, First, the person can make informed decisions about who they want to appoint as their agent to make health care or financial decisions for them if they are unable to do so.
Second, the person is able to assist in creating proper powers of attorney documents and decide whether the powers should be effective immediately or upon their incapacity.
Additionally, any of the documents may be amended or revised as long as the person is mentally competent.
Taking these measures often eliminates the need for a court-supervised conservatorship or a guardianship in the future.
Consider All Your Options
Even though setting up a joint bank account may seem to be a convenient option to get help managing your finances, there are many risks involved. Carefully consider all the risks and get information about all the options available to you before making any decisions.
If you prepare a detailed power of attorney that gives your attorney the authority to access specific bank accounts, they will be able to help you pay your bills and manage your finances.
With a power of attorney document, you can limit what your attorney is allowed to do. With a joint bank account, you may not be able to limit what your joint account holder can do with the money in the account.
There are also mechanisms in place to hold an attorney accountable if they mismanage your finances or do not manage your money in the way that you directed them to in the power of attorney document. It is very difficult to hold a joint bank account holder accountable for the mismanagement of money in the account.
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How To Get Power Of Attorney For An Elderly Parent With Dementia
It is very common for family members to ignore or dismiss the early signs of dementia or Alzheimers as simply a part of aging. Unfortunately, this makes it very difficult to obtain a Power of Attorney if the disease has progressed.
If your elderly parent wrote a living will granting you a Durable Power of Attorney, then its well taken care of but if they did not and have now been diagnosed with dementia or Alzheimers, then any legal documents that they sign are invalidated.
Limited Power Of Attorney
A limited power of attorney limits the agent to make decisions about specific tasks. It is often used to authorize someone to pay bills or sell a house, and the agent can only take action thats specified in the document. These POAs are generally only active temporarily and will be revoked if the principal becomes incapacitated.
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How To Set Up And Register A Lasting Power Of Attorney
You can apply online for both types of LPA or download the forms, along with detailed guidance on how to complete them.
You can get someone else to use the online service or fill in the forms for you, such as a family member, friend or solicitor.
The LPA forms need to be signed by someone, apart from your chosen attorney, to state that you have the mental capacity to make an LPA. The forms also need to be witnessed.
You then need to register each LPA with the Office of the Public Guardian. Either you or your attorney can do this.
Registering the LPAs takes several weeks. You’ll have to pay a fee for each one, which may be reduced if you’re on a low income or receiving certain benefits.
Discussing Power Of Attorney Agreements With Your Parents
Discussing power of attorney agreements is important to your parents well-being, but acknowledging their declining physical or mental health can be difficult. First and foremost, you should focus on the positive. This legal document will lift the burden of making decisions off your parents shoulders and give them peace of mind for the future. Here are a few other tips for navigating the conversation:
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Can A Person With Dementia Make A Power Of Attorney
Having dementia can take a significant toll on ones memory, reasoning, and decision-making skills. Understandably, this often fills family members with questions and concerns about their loved ones capabilities.
Whenever possible, its best to create a durable power of attorney while you are still healthy and as capable as possible. This allows you to make your wishes very clear to your attorney-in-fact so they can confidently act in your best interest, should you lose your mental capacity.
However, even if your mental health has already suffered a decline, its not too late to appoint someone to this role. A diagnosis of dementia does not remove your right to make legal decisions.
For A Better General Durable Power Of Attorney
Reminder: I am not an attorney. But given the problems Ive seen people encounter with their POA documents, I would really recommend that any general durable POA document you or your family member completes address two key issues:
Addressing incapacity
My feeling is that the incapacity specifications should account for the possibility of delirium, and should provide for the possibility that the incapacity might get better. Alternatively, the language needs to do a better job of making physicians state that the principal has permanent and irreversible changes to the thinking abilities, as demonstrated by the problems not improving over at least 3 months, or some such.
I havent yet seen an actual POA that contains such language, but I did find an online legal article titled Elder Law Incapacity Planning and it suggested this language, which is better than most:
shall be considered incapacitated if the Trustee becomes unable to manage his or her business affairs due to illness or for any other cause, and that incapacity is likely to continue.
Reducing the risk of financial exploitation
Historically, most power of attorney documents have allowed the agent to have a lot of power to manage the principals finances and affairs, while requiring virtually no oversight.
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The Sterling Aventura: Supporting Adults And Their Families
At The Sterling Aventura, we know that living with dementia can be stressful for adults and their families. We are here to support everyone involved. Whether your parent is in the early stages of dementia and does not need full-time support or is dealing with the later stages of the disease, we are here for your family.
Our Florida memory care community provides personalized support plans that help every resident maximize their abilities so they can reach their personal goals. As a family member, you are an important part of that. We will take the burden of care off your shoulders so you can focus on spending time with your parents, helping them live the life you know they want.
Learn more about how the Sterling Aventura partners with families to create an environment of engagement, community and collaboration. We would love to talk with you about our commitment to helping our residents live full and meaningful lives. Reach out today for more information.
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What Is Lasting Power Of Attorney
For a person with a diagnosis of dementia, there may come a time when they are unable to make decisions about their care and their finances. This happens when someone is found to no longer have the capacity to make these decisions. We will discuss capacity in more detail throughout this leaflet .
A lasting power of attorney is a legal document appointing one, or more, trusted people to be a persons attorney. An attorney is a person responsible for making decisions on their behalf.
There are two types of LPA. It is possible to draw up one, or both. The same attorney can be appointed for both, or someone different can be appointed for each. They are:
Health and welfare, which appoints an attorney to make decisions regarding medical care, future care needs such as moving into a care home, and life-sustaining treatment. It can only be used once the person can no longer make their own decisions.
Property and financial affairs, which appoints an attorney to make decisions regarding managing a bank or building society account, paying bills, collecting benefits or a pension, or buying and selling a house. This can be used immediately if the person making it gives their permission.
An LPA is only valid in England and Wales. People in Northern Ireland can contact the Office of Care and Protection for advice on 0300 200 7812 .
People in Scotland can contact the Office of the Public Guardian on 01324 678398″ rel=”nofollow”> www.publicguardian-scotland.gov.uk).
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Tip: Get Permission For Caregiver Communication In Advance
Get permission in advance from the person with dementia to have his or her doctor and lawyer talk with a caregiver as needed. Advance permission can also be provided to others, such as Medicare or a credit card company, bank, or financial advisor. This can help with questions about care, a bill, or a health insurance claim. Without consent, the caregiver may not be able to get needed information.
Gaining Power Of Attorney From A Parent With Dementia: 4 Tips To Make It Easier
A Power of Attorney, or POA, allows an individual to appoint another individual to manage their affairs if and when they become unable to do so. There are several different types of POAs to address a variety of situations and levels of control. A Durable Power of Attorney is most often granted by individuals in early stages of dementia, because, as the term durable suggests, it will continue to be valid after he or she is no longer able to make their own decisions.
When does your parent need to grant Power of Attorney? Now!
As a memory care provider, we occasionally will have a family member come to us seeking care for a parent who is in the later stages of dementia. We ask if they have been granted Power of Attorney. This takes some families by surprise who were not aware of the legal requirements of making these kinds of decisions. Now, they will need to find an attorney and start from scratch. And, because their loved one is no longer capable of making decisions, the process is more complicated. That is why it is important for your parent and you to take action while he or she is still cognitively aware and able to grant Power of Attorney.
The more organized you are, the easier the process will be.
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Can General Or Ordinary Powers Of Attorney Be Used To Make Decisions That I Can’t Make Myself
Unlike an LPA or EPA, general or ordinary powers of attorney cannot be used if you become unable to make decisions about your property or finances in the future.
When you have dementia, an LPA is a better option as it allows your attorney to make or continue to make certain decisions for you if you cannot make them yourself.
Dementia And Incapacity: What Is A Power Of Attorney And Is It Forever
The number of cases of dementia is estimated to almost triple by 2050
Its a growing problem with our aging population comes a steady increase in the number of older people developing dementia and other incapacitating mental conditions.
How as a family member or caregiver can you help? How as a person approaching old age can you plan for a future time when you will need help? Your first thought will likely be the quick, simple and cheap option of a power of attorney, but beware it will fail just when it is needed most.
Well have a look at what a power of attorney is, at why it is not a forever solution, and at the alternatives available to you.
Although the actual prevalence per capita of dementia is reportedly on the decline, aging populations ensure that it is becoming more and more of a problem in society for older people, their families and caregivers.
If someone close to you needs or may in the future need assistance with their financial affairs, your first thought will probably be a power of attorney by which the principal appoints an agent to act for him/her, either for a particular purpose or generally . You may well have the same thought if you yourself are approaching old age and starting to plan for your future needs.
A power of attorney is certainly a quick, cheap and easy solution but be careful its only a temporary one. It is not forever!
The downside automatic termination
So what are the alternatives?
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Hire An Estate Or Elder Law Attorney
Technically, you don’t need a lawyer to get a power of attorney agreement created. That may lead you to ask, “Where can I get power of attorney forms to fill out?” The answer is pretty simple: You and your parent can get self-guided legal services through a website like LegalZoom or find free power of attorney forms online. In addition, all kinds of POA templates are available on many state websites as well as in some office supply stores.
However, do-it-yourself POA agreements are somewhat prone to errors that can render them weak, useless, or invalid. For example, they are often too vague in their language, making them inappropriate for situations that have special circumstances. In some cases, they are also outdated and don’t adhere to current state requirements. Sometimes, they even lack the necessary language for granting the particular powers of attorney that are most needed by the agents named in them.
A good attorney will also be able to offer alternative recommendations that may better suit your parent’s situation. For instance, maybe your parent would feel more comfortable with a living will than a medical POA agreement. Or maybe he or she would want both types of advance health care directives.