Aging Options Blog : Washington Estate Planning Lawyer & Attorney : Rajiv Nagaich : Aging Options Law Firm : WA Elder Law, Wills & Trusts

Typical concerns about Powers of Attorney 

I'm afraid that the person I appoint won't manage my affairs properly

giving someone the potential power to manager affairs can be frightening. This is why it is important for you to appoint someone you trust to be your attorney. She must use your finances as you would for your benefit. Giving someone a power of attorney does not limit your own rights in any way. It simply gives the other person the power to act when or where you cannot act.

Does a power of attorney take away my rights?

Absolutely not. Only a court can take away your right to manage her own affairs, through a conservatorship or guardianship proceeding. In attorney simply has the power to act along with you, and as long as you are competent, you can revoke the power of attorney.

I don't have anyone I trust enough to give them power over my affairs

if you do not have someone you trust to a point, it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship. In that case, you may use a limited durable power of attorney to simply nominate the person you want to serve as your guardian. Most dates require the court to respect your nomination "except for good cause for disqualification."

What if I change my mind?

You may revoke your power of attorney at any time. You need to send a letter to your attorney telling her that her appointment has been revoked. From the moment the attorney received a letter, she can no longer act under the power of attorney. If you have recorded the power of attorney with the land records of your County or at the probate court, you must record the rev

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My sister-in-law has power of attorney over her mom, who has advanced Alzheimer’s disease.  She wants to move some stocks out of a mutual fund into a different one because it is doing poorly, and the investment company does not recognize power of attorney.  How can this be?

It cannot be.  This is also not the first time I have heard about it.  If the power of attorney was written over three or four years ago, they do not know if it has been changed or revised, and they consider it a big risk for them.  But the fact of the matter is, even if a person creates a power of attorney in 1901, it would still be valid today.  The way to overcome that is two things. First, whoever is trying to use the power of attorney, can prepare something called an affidavit in support of power of attorney, whereby, under penalty of perjury, you swear that this is the power of attorney that was created and no other power of attorney to your knowledge has been created since, and I am in good faith using my power of attorney to further the benefits of the person who gave me this power. If you can present that document to the financial company and they still refuse to honor it, you will have to go to court and get an order from a judge requiring the institution to accept the power of attorney, and the penalty is they may have to pay all the fees and costs associated with obtaining this order. 

So generally, what we do is to write the letter to the institution telling them that this is the valid power of attorney, based on the specific rules and requirements, and attached they will find a copy of the affidavit in support of power of attorney.  If they still choose not to honor it, we will take them to court. 

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What can be done when both parents are in declining health, and do not want to leave their house?  
                                        
If power of attorney has not been prepared, a guardianship is something to consider. A guardianship is where an attorney will go to court, and have the parents declared incompetent.  However, this can be considered by the parents to be a slap on their face.  And in this case, the court may not impose a guardianship due to the fact that the parents likely have enough mental capacity to understand the decisions they are making and the risks they are taking.  And so, in my opinion, a guardianship is a poor solution.

Even with power of attorney, children may not be in a position to enforce their decision to move the parents to an assisted living facility, due to the fact that the power of attorney can be revoked.  

Another solution would be to try to talk to the parents, and convince them to move. But this may end up alienating the relationship between the children and the parents.  The children may need to try to understand that the parents may not consider their advice in the same manner that they would consider advice from someone in the professional field.  This is one situation where the care and management aspect is so appropriate, such as a care manager or social worker, because the parents do not want to leave their home although the children do not consider it a safe situation. 

Care managers or social workers help to create a plan that can work to provide things such as a personal emergency response system that allows them to continue to live safely at home. This may be a solution that both parties can agree with. 
 

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One of my client Vicky calls to ask for advice regarding her aging father living in North Dakota in a nursing home. Stepmother rarely visits Dad in the nursing home and daughter would like to bring Dad to Washington so she can help care for him. Vicki relates that in a previous conversation when she had suggested the move, her dad had raised concerns over not being able to see his wife and thus refused the move. Stepmom has the power of attorney over Dad and may not be cooperative. Dad has been married to stepmom for several years.
 

Here is my advice to Vicky, you are dealing with a sticky wicket. I admire your dedication to your father. But the fact is that so long as your dad has any capacity to understand the issue and form an opinion about it, you will have no say-so. This is about your dad, not you. Your dad made the decision to marry your stepmom and give her the authority to make decisions on his behalf if he became incapacitated. People do strange things. As hard as it is for you to see your dad alone in the nursing home without visits from your stepmom, that is the choice your dad has made. Legally, you can seek guardianship over your dad, but guardianship will be granted only if you are able to show that your stepmom is negligent in her duties as agent under the power of attorney to your dad. Not visiting your dad regularly may not be enough for you to be successful.

My advice would be to discuss this issue with your dad and stepmom and propose that you are willing to relieve your stepmom of the overwhelming responsibility of caring for your dad. I am sure that somewhere deep down, your stepmom knows that she is not being a good support person and may be willing to give up her role as agent under power of attorney. If that does not work, I would have you think hard about your legal right to seek guardianship. Unless your dad approves and will not suffer from losing his ability to see your stepmom, I would advise against it. What is the point of moving your dad if he is going to be miserable? He will likely resent your involvement and die a broken-hearted man. Resolve yourself to visiting your dad as often as you can and letting him know how special he is. And keep working on a solution that is acceptable to your stepmom as well.
 

Next, should you decide to move your dad, involve a care manager from the start to help you understand your options about his care. If you are willing to bring him to your home, the care manager will assist in developing a care plan that will allow this to happen without becoming overly burdensome to you alone. If living at home is not an option, the care manager will guide you through the process of selecting an appropriate housing alternative that will address your dad’s needs and resolve your concerns.

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How can a Power of Attorney help keep you out of a nursing home?

A  Power of Attorney is more powerful that you think and a document that is not given much thought. To clarify, a power of attorney is a document that you sign to name a person of your choice, who you wish to appoint as your surrogate to act on your behalf should you be unable to act on your own behalf. This may be because you are out of town or are physically or mentally incapacitated to a point that you cannot attend to your own affairs. 

Think about how you and I decide who to name as our surrogates. We simply choose the people we love and trust the most without giving much thought to the types of decisions they will have to make. In reality the most difficult decision our surrogates will make is to step in when they see us slowing down in life. 

We say to them that if you see that we cannot manage our own affairs, we trust you that you will make all the right decisions, including the decision about our housing needs. And when our surrogates find us not being able to address our own needs independently they will turn to the medical community for help. And our medical community views nursing homes and assisted living facilities like the rest of us view McDonalds. Cheap, convenient and available. Little attention is given to the effects and quality of the food.  Same way, the doctors and medical providers generally do not explore the issue in any detail because institutional care is an easy fix. 

This is the reason why many of us end up in nursing homes though we could well be able to stay at home. So, what you want your power of attorney to do is not just to give responsibility to your surrogate, but also to direct that your surrogate use the resources in your estate to seek out the assistance of a qualified geriatric care manager who can provide your surrogate options that should be considered about your care needs. Including whether you could stay at home and if so what services would be needed to accomplish the objective; if you could not stay at home what alternatives exist between home and nursing home and associated costs. 

With this information your surrogate could make the final determination, but at least it will be based on a thorough review of the facts by an objective independent professional. In the end, you are not a burden on your surrogate and your quality of life is much improved because of this directive. Not to mention the analysis of whether Medicare or Medicaid could cover some of the costs. 

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