Power of Attorney –General, Durable, Special, Medical –What Kind Do You Need?

There are several kinds of Powers of Attorney. Navigating your way around all of them and making sure they are put in place and executed properly can be confusing.

When caring for a dementia patient there will come a time when they will need someone to handle their legal and financial affairs. If your loved one has been showing signs of forgetfulness it is time to approach this subject.

It will not be an easy discussion to have. Many people are resistant to making plans that would only be necessary if they are incapacitated somehow. They may think that making the plans will hasten the day that the document is needed or they may not understand why a power of attorney is necessary or what it could be used for.

This web page will give you general information on this topic, but we urge you consult an attorney when working with these kinds of documents. These are extremely important legal papers and the laws governing them may vary state by state. It would be better to have these done with the supervision of an attorney than to possibly make a mistake and not realize it until it is too late to fix it.

So, what is a Power of Attorney? And why does your loved one need one?

As we said before there are several kinds of Powers of Attorney (POA.) And they are each used for different purposes. In some states some of these documents can be combined with others; be sure to consult an attorney for specifics.

General Power of Attorney

This kind of POA is often used for a specific purpose—a real estate transaction, for example. It is important to know that this kind of POA will not be valid if the Principal is disabled or incompetent. This is not the kind of document your loved one will need of they have dementia.

Durable Power of Attorney

Be sure that the dementia patient requests that their lawyer prepare a durable power of attorney or you (or whomever is assigned ad the POA) may not have the authority to handle your loved one’s affairs when it is most needed.

A durable power of attorney can be used by the Attorney in Fact to handle all legal, financial, tax, and real estate matters for the Principle.

Springing Power of Attorney

A Springing Power of Attorney will only become effective in the case of disability or incompetency. The problem can be that in order to be accepted as a legal document a formal declaration of disability or incompetency may be required. The document itself will include the necessary steps that must be taken to make this determination.

This additional requirement can cause a delay in the document being in effect and also add expenses for doctor and attorney fees. It is possible that family members and doctors could disagree about the dementia patient’s condition which could cause lengthy delays and even higher expenses.

Some banks or other organizations may not be eager to accept this kind of POA because of the potential problems it may cause.

Durable Special Power of Attorney

Our Mom’s Durable POA was a Springing POA so this Durable Special POA gave me (Paula) the right and responsibility to handle certain situations, but not to make the final decisions concerning Mom’s affairs.

This extra input helped our Mom to better understand certain situations such as dealing with insurance paper work and finalizing the reverse mortgage on her home.

Durable Medical Power of Attorney

The Durable Medical POA works best if the dementia patient also has a Living Will and an Advance Directive to specify what kind of care they desire to receive in a medical situation.

Things to Consider Concerning Powers of Attorney

• Discussing what needs to be done in the event that you or someone you love is not able to handle your own affairs is never an easy thing to do. Just thinking about the possibility of being incapacitated makes the whole situation even more difficult.

  But these decisions do need to be made and they need to be made sooner rather than later. The effort you make to encourage your loved one to get these legal documents in order will be well worth it if they are needed someday.

• If your loved one doesn’t have a Durable Power of Attorney in order and they become unable to care for themself you will need to consult an attorney who can set up a kind of guardianship over the dementia patient.

  While this is an option, it will involve a lengthy delay, expensive fees, court appearances, evaluations, and may not ultimately reflect what your loved one’s wishes would have been. Encourage them to save themselves and you the stress and the trouble.

• The POA is legally responsible to act in the best interest of the Principal. This doesn’t always happen. For this reason the Principal may choose to assign to different people to be the Durable General POA and the Durable Medical POA. This distinction could avoid any conflict of interest the Attorneys in Fact may encounter.
• The Attorney in Fact should be someone whom the Principal has great trust in. While the dementia patient may be aware that they are losing the ability to control their own affairs they still need the assurance that they will be well cared for by the person(s) they appoint to serve as their POA(s). It is a big decision as well as a big responsibility.
• A POA expires at the death of the Principal or at a specified date listed in the document. For this reason, if your loved one had a POA drawn up at some time before they developed dementia symptoms it is a good idea to review it or have it reviewed by an attorney to be sure it is adequate to meet their current situation.
• It is also a good idea to have these documents reviewed by a lawyer every 3 to five years to be sure that they are still valid considering the Principal’s current circumstances and diagnoses.
• Be sure to have the Attorney in Fact review all legal documents and be sure they understand them before they are necessary. We were surprised that our Mother’s General Durable POA was a Springing POA. We had to learn the hard way how to get it activated when we needed it. Surprises like this when you are already experiencing stress are not fun.
• The POA documents should be stored where they are accessible 24/7 and there should be several copies of these documents. If it becomes necessary to make a financial, legal, or medical decision in the middle or the night or on a weekend having the only copy of these vital documents locked in a safety deposit box or a lawyer’s safe is not a good situation.
• Of course, the ideal situation would be if the Primary Caregiver is the POA, but this is not absolutely necessary. The Attorney in Fact should be accessible 24/7. Being the Primary Caregiver is a huge responsibility and so is being the Attorney in Fact. It may be less stressful if these jobs are shared by two or more people.

Serving as the Power of Attorney for a loved one often involves making very difficult decisions about how to liquidate assets needed to provide funds for necessary care or whether or not to give the consent for surgery or to withhold a certain medication. It can involve heart wrenching emotions. Not only does the person who serves as POA need to be trust worthy and responsible, but they also need to be mature and emotionally strong. Serving as POA is not a pleasant task, but it is a necessary one.

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