If you are involved as a care provider for someone who is not able to manage their own affairs, you need to have the legal authority to act in the person’s best interest. To do that, you’ll need to have Power of Attorney (POA) for them, explains the article “How to get power of attorney for a loved one” from Tyron Daily Bulletin.
If the person you are trying to help suffers from dementia, a terminal illness or a condition which makes it difficult for them to communicate or make reasoned decisions, you may not be able to obtain a POA, as they may not longer have the legal capacity to name you as their agent. As a result, may need to go to court for a guardianship or conservatorship instead.
POAs vary by state, so talk with an estate planning attorney to find out what your state allows. In most cases, the POA gives you the power to act on someone else’s behalf for a specific period of time regarding financial management. In most states, you will need a separate healthcare POA to make healthcare decisions or to speak with healthcare providers.
The agent (also known as an attorney in fact) under a POA is required to act in the best interest of the principal. Decisions regarding investments, property, bank accounts, debts and other financial matters must always place the principal first. It is crucial to maintain complete and accurate records of all transactions, and the agent’s finances and personal affairs must be kept separate from the principals.
If the principal is alive and of sound mind, they can overrule the agent’s decision, change or even terminate the POA agreement. They can also name someone else to serve as their agent with another POA. All POA powers terminate upon the death of the principal. Unless the same person has been named as agent under POA and as the executor of the estate or is appointed as executor (or administrator) by the court, that person’s responsibility ends upon the death of the principal.
There are a number of things that an agent under a POA cannot do:
- Be paid for personal services provided to the principal
- Vote in place of the principal
- Take over the principal’s guardianship of another person
- Change the principal’s will.
Even if you or the person who is naming you as the agent under their POA is in good health now, it is wise to plan for the future. We do not know when our capacity to manage finances or make healthcare decisions will be lost. Speak with an estate planning attorney about the POA to best serve your circumstances before it is needed.
Reference: Tyron Daily Bulletin (March 7, 2022) “How to get power of attorney for a loved one”
