All Older Americans Need a Durable Power of Attorney (DPOA)

So many times you hear a story about a family member or friend who is trying to arrange for the care, payment of services, or other needs for a loved one and the provider or business will not speak with them. This happens way more often than you might think, and it can happen fast.

Consider what could happen if your loved one, who currently lives an active life in their home, fell and required hospitalization, rehabilitation, and eventually long-term care. What if they become fragile, are heavily medicated, battling other illnesses, or they are on a downhill slide? How will you know that their preferences will be heard and acted on? Will they be at the mercy of a very broken, over-whelming and fragmented health care system, or will there be someone to step in and help make sure that their preferences are executed?

POA Is the CURE

A Power of Attorney (POA) is a legal document most commonly giving one person (the “agent”) power to act for another person (the “principal”) when the principal is not able to speak or make decisions for themselves. A POA that is not modified by the “principal” or overridden by a court lasts until the death of the principal. A POA can also be limited by the principal and grant the agent specific authority to execute a task like selling a car or property.

The agent is always expected to act in the principal’s best interest. Agents can have broad or limited legal authority to make decisions for and execute contracts for the principal about property, finances, medical care, and other issues. An agent cannot change the principal’s will, make decisions for the principal after death, or change the POA to another person or agent. Finally, although not common two or more people can have POA. The POA needs to be “Durable” to remain in effect after the principal becomes incapacitated or dies. If the POA does not specifically say it is durable the POA ends when the principal becomes incapacitated. It’s possible although not common to give two or more agents your POA.

Critical Tip: Third parties, especially banks and financial institutions, have frequently challenged the authority of an Agent using a POA. In these types of case the courts are used to order the third party to honor the POA.

OVERRIDING POA

When a POA is not acting in the principal’s interest, it may become necessary to override their authority. This is done by filing a petition in court challenging the agent. If the court finds the agent is not acting in the principal’s best interest, it can revoke the POA and appoint a Guardian.

Elder Law attorneys are very helpful when trying to understand how to execute and use a POA based on your circumstances. They often provide an initial consultation for no charge. Although free POA forms are available online there are many issues to consider. We recommend using a qualified, local attorney 100% of the time.  The National Academy of Elder Law Attorneys will help you find the right attorney. Spare yourself and your family the pain and anguish of trying to help a loved one when they need it most. Learn about POA and DPOA. Find a local attorney to help you execute the right tool for your needs. This will help you keep control of your loved-one’s safety, care, and quality of life, and support your own well-being as well.

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