Powers of Attorney
The holidays are a time when sons and daughters return home to visit their parents. Often, they are surprised to see the decline in their parents’ health and independence. When this happens, the sons and daughters need to know what to do.
Most important is to make sure that elderly family members are safe. From a legal standpoint, it is important to determine whether Powers of Attorney for financial and healthcare decisions have been signed and if so, what those documents allow the agent to do and when those documents become effective. Springing Powers of Attorney do not become effective, and therefore do not authorize the agent to act on behalf of the principal, until a physician or physicians determine that the principal is incapacitated. This can be burdensome and the complication of taking the family member to a physician to be “declared incapacitated” can be emotionally painful. To avoid that complication, an alternate option is to have Powers of Attorney which become effective immediately upon signing.
If an elderly family member has a springing Power of Attorney, thought should be given to whether he or she still has the legal capacity to sign a new Power of Attorney. If the elderly family member no longer has capacity to execute legal documents, and he or she does not have a Power of Attorney, guardianship and conservatorship must be pursued through the court. This process can be emotionally painful as well, and can be costly. For that reason, it is imperative for all individuals to have Powers of Attorney. They are one of the single most effective arrows in the estate and elder law attorney’s quiver.