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home | Legal Issues | How Do I Get Power of Attorney?

How Do I Get Power of Attorney?

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From the Mailbag:

Can you advise me the best way to obtain a power of attorney?
My parents need my help now.

Dear Dean,

I'm sorry to hear your parents need your help, but I'm glad you're there trying to provide it!

The authority granted in powers of attorney is something your parents have to give to you. You can't "obtain" power of attorney on your own without their full knowledge and participation.

This means that your parents must be able to understand and consent to you having this authority. They must be capable of understanding the meaning and the consequences of the power they will be granting to you, and of course they must be able to sign the applicable documents.

If your parents are capable of the above, you can obtain a basic medical power of attorney form from any hospital that participates in Medicare (go to the admission or social work departments). Many physicians' offices also have these forms available. Your parents will each have to complete and sign a medical power of attorney form before one or more witnesses. Although each state has their own regulations, these don't generally have to be notarized.

A durable power of attorney for managing someone's financial affairs should be prepared by an attorney, because the nuances of a person's financial affairs can be complex. If the document is not correctly written the attorney in fact (you) may not be granted all of the authority you need. Again, your parents must each be able to understand and sign individually. The durable power of attorney must usually be both witnessed and notarized.

If your parents have an attorney, their lawyer can probably prepare these documents for them, including the medical power of attorney. There are other documents that should be discussed, as well, and a good attorney will bring up the possible need for an advanced directive (living will), an advanced designation of guardian, and of course a last will and testament. If your parents do not have an attorney they trust, you can find a directory of elder law attorneys on the website of the National Association of Elder Law Attorneys. If your parents are homebound, ask whether the attorney will make a home visit to get documents signed. Many will.

If your parents are not not able to understand these legal documents, then they "lack capacity" to sign them. If that's your situation, then you may have to consider pursuing guardianship. In that case, then the FIRST thing you should do is consult with an attorney about your options. Guardianship is complicated, expensive, involves going to court, and can take quite a bit
of time.

Many older people are reluctant to sign powers of attorney, because signing these documents implies that they are giving up control. The durable power of attorney for managing financial affairs is especially troublesome for some of these seniors, who were brought up to keep their financial information very, very private. The thought of giving one of their children "access" to their assets is not acceptable. How you approach parents with this mindset will depend on their health and personalities.

Of course, giving someone who understands your wants and needs the ability to help if you are incapacitated is the only way to maintain control, but often that's a difficult concept to grasp. It may take several conversations, or even the help of that trusted attorney (or clergyman, CPA, good friend, other trusted person) to get the task done.

There is more general information about these legal documents that we ALL need, regardless of our health or age, in our Legal/Financial Department . While you're studying this information, think about giving someone your powers of attorney, as well. The subject about how you are making your choices is often a good way to start the conversation with your parents. You could even go in together to get everyone's documents done at once if your parents are up to it.


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