Power of Attorney: Protecting the Rights of Incapacitated Loved Ones

Power of Attorney: Protecting the Rights of Incapacitated Loved Ones

It is important to ensure that a Power Of Attorney (POA) can be established if a parent becomes incapacitated for any reason.

They may be unable to make decisions on their own due to mental incompetence brought on by age or illness.

Under these circumstances a family member typically assumes this responsibility through a Power Of Attorney.

A Power Of Attorney allows someone to act on the behalf of a mentally incapacitated individual.

Usually it is to make decisions about their financial and personal matters.

For example, making legal decisions related to health care, ability to sign legal documents, carry out banking transactions and investments.

For a Power Of Attorney to be valid, both parties must sign a legal document agreeing to the terms and conditions of the arrangement.

Taking on the role of Power Of Attorney is time consuming.

It involves many complex tasks which require careful consideration.

These can include:

i) setting up bank accounts and investments

ii) managing bills, taxes, and insurance

iii) making healthcare choices

iv) handling end-of-life planning

v) dealing with other legal matters that may arise over time.

This can be achieved with proper planning, research and understanding of your loved one’s wishes.

Together with consulting the appropriate professionals when needed, it can be managed effectively.

Getting professional advice from an experienced lawyer who specializes in such matters is highly recommended.

This is because laws vary from state to state.

Those taking on this responsibility must have the patience and willingness needed to carry out all duties associated with being a Power Of Attorney.

This means keeping an open dialogue with family members.

This lets everyone understands what is required for decisions made on behalf of the incapacitated parent(s).

In every step of the process the decisions made on the principal’s behalf must be in line with their wishes whenever possible.

Purpose of the Power Of Attorney

The main purpose of the Power Of Attorney document is to ensure that the parents’ wishes and interests continue to be respected.

This is even in the event they lose the mental capacity to exercise sound judgement.

Mental capacity

Mental capacity is defined as having sufficient understanding and memory to comprehend, make and communicate your own decisions.

Legal documents

A Power Of Attorney document for the mentally incapacitated person needs to cover details such as:

i. listing out any individuals or organizations from whom information related to them can be requested

ii. naming any individuals who assume adult guardianship

iii. specifying any financial decisions that need special instructions

iv. providing instructions for handling medical decisions

v. prescribing end-of-life care decisions

vi. establishing advance directives to accept or refuse life sustaining treatment

vii. designating funeral arrangements

Terms and conditions of a Power Of Attorney document

For a Power Of Attorney to be valid, both parties must sign a legal document agreeing to the terms and conditions of the arrangement.

This legal document must include all of the relevant details regarding who will act on the principal’s behalf.

Also, what authority they have been granted.

The Power Of Attorney should also specify any limits or restrictions on their power.

Considering all contingencies

The Power Of Attorney should include specific details about how decisions can be made on behalf of the incompetent person.

For example:

i. who will make financial and medical decisions

ii. who has access to personal records and bank accounts

iii. how decisions will be made regarding investments and spending

iv. how changes can be made in the Power Of Attorney itself over time due to changing circumstances

Difference between a General Power Of Attorney and an Enduring Power Of Attorney

General Power of Attorney and Enduring Power of Attorney are two distinct legal documents that grant authority to someone else to make decisions on behalf of another person.

General Power of Attorney

The General Power of Attorney is a short-term arrangement where the decision-making powers granted to an individual (the ‘attorney’) are limited in scope and time period.

General Power of Attorney allows a person known as the “grantor” to appoint someone else (the “attorney-in-fact”) as his/her agent or representative.

The attorney-in-fact has the legal authority to manage financial and legal matters.

It also includes other business related activities on their behalf.

This type of power is usually granted for a specific purpose and for a limited time frame.

It is usually terminated when the grantor dies or becomes incapacitated.

It is generally used to handle matters such as selling property, collecting debts, or managing finances.

This is while the principal is away on vacation or otherwise incapacitated.

The duration of this document usually ends upon the return or death of the principal.

Enduring Power of Attorney

Enduring Powers of Attorney are designed to last longer than a General Power of Attorney.

It can be extended beyond the grantor’s death or incapacity.

It can also be used to appoint an agent who will make decisions about personal care and health care.

Also, estate planning if the grantor becomes mentally unable due to sickness or injury.

This type of power normally covers both financial and personal matters.

It can also be tailored to cover only certain areas such as real estate transactions and insurance policies.

Unlike with General Powers of Attorney, Enduring Powers of Attorney remain in effect even after the grantor passes away or becomes incapacitated.

This type of power allows for continuous decision-making authority.

This is even if the principal would become ill or unable to communicate their wishes in any way.

An Enduring Power of Attorney grants much broader powers over longer periods of time.

It covers both financial and medical decisions.

It is important that detailed instructions regarding all areas are included within the attorney documents.

This is so that it is accepted by courts and other authorities once needed.

It is more suitable for elderly individuals who may require someone else look after their affairs due to age-related mental incapacity or health complications.

An Enduring Power Of Attorney allows individuals to appoint multiple attorneys with different roles.

For example one handling financial decisions and another overseeing medical decisions.

Enduring Power Of Attorney- Responsibilities and Risk

Responsibilities

Those taking on this responsibility must have the patience and willingness needed to carry out all duties associated with having Power Of Attorney.

Those with Enduring Power Of Attorney must remember that when making decisions on behalf of another person.

They must always act within the remit set out within relevant state laws relating to Powers Of Attorney.

Failure to do so could leave the individual open to considerable liabilities and possibly criminal action in extreme cases.

It is essential that they stay abreast with any changes in legislation concerning Enduring Powers Of Attorney.

They must educate themselves on all relevant aspects before entering into such an arrangement with a loved one.

Risks

Financial abuse

One of the main risks associated with Enduring Power of Attorney is the potential for financial abuse.

A person with Power of Attorney may misuse funds, divert them to their own use, or even engage in identity theft and fraud.

This could especially be a risk if the represented elderly person has dementia and unable to recognize when something is amiss.

The person with Power of Attorney may make financial decisions on the principal’s behalf that are not in their best interest and without their knowledge.

This can include conducting financial transactions such as selling off their property without their consent.

It can involve making ill judged investments.

Family conflicts

Another risk of Enduring Power of Attorney is that it can give rise to conflicts within families.

It can become difficult for family members to see each other as equal when one has legal authority over others.

Their choices can impact financial and health decisions about their future and wellbeing.

A family member or close relatives may disagree about how best to manage care for an aging relative can cause tension and strife.

There is a risk that those given enduring Power of Attorney may not act in accordance with the law or act ethically in all cases.

They could use these powers to benefit themselves rather than the represented adult who is no longer of sound mind.

They may fail to keep accurate records, or even act illegally by taking advantage of the mentally incapacitated parent.

To reduce these risks it is important to ensure that any person given this power is honest.

They must always act with integrity and in accordance with both ethical principles and legal requirements.

The importance of estate planning documents

Estate planning can be beneficial to everyone, no matter what the age. 

A properly planned estate plan includes documentation to make sure everything goes smoothly.

Among the most used estate planning documents are:

Advance Directive and Living Will

Advance directives are legal documents that are used to specify to the attending physician the best medical treatment for particular circumstances.

The purpose of the Advanced Directive is for the principal to put in place the medical decisions that affect any ongoing treatment.

This is for when their mental faculties are permanently impaired.

This applies only as the principal loses communication skills, as in end of life situations.

A Living Will is a specific type of advance directive that gives you control over their medical care.

This comes into effect when the parent does not have the mental capacity to make their own medical decisions.

Enduring Power Of Attorney

An Enduring Power Of Attorney is valid when their mental abilities are significantly reduced as determined by a medical doctor.

This will allow another person to have a decision-making capacity.

This legal document is also called a financial durable power of attorney.

Last Will and Testament

A will or testament is a legal document that is important in explaining how to distribute assets.

One person known as a testator can decide which will be the beneficiary of their estate when their will is passed.

It also means that your estate will determine the distribution of the property upon your death.

Frequently Asked Questions

How can caregivers protect their loved ones’ rights?

As caregivers, we want to do everything in our power to protect our loved ones.

Sometimes that means advocating for their rights when they can’t do it themselves.

There are a few things you can do to help ensure your loved one’s rights are protected:

1) Stay informed about your loved one’s rights and the laws that apply to them

This includes knowing what kind of care they’re entitled to, what rights they have if they’re hospitalized.

Also consider what options are available to them if they need long-term care.

2) Speak up if you see someone infringing on your loved one’s rights

If you see a nurse refusing to let your loved one eat or drink.

If you think their living conditions aren’t adequate, speak up.

Let the hospital or nursing home know that you’re aware of your loved one’s rights.

Importantly you expect them to be respected.

3) Get involved in their care

If your loved one is in the hospital or a nursing home, visit often and talk to the staff about their care.

Ask questions and make sure they’re getting the treatment they need and deserve.

4) Contact a lawyer if necessary

Contact an attorney if you feel like your loved one’s rights are being violated and the hospital or nursing home isn’t willing to listen.

They can help protect your loved one’s rights and ensure that they’re getting the care they need.

What should caregivers do if they feel overwhelmed for their role as Power Of Attorney?

When it comes to being a Power Of Attorney, caregivers can feel overwhelmed or unprepared for their role.

There are a few main points that can help caregivers feel more confident in their abilities.

1. The Power Of Attorney should always have the best interest of the person they are caring for

This means making decisions that will benefit them, both now and in the future.

2. The Power Of Attorney should be familiar with the state laws that pertain to their role

This will ensure that they are aware of their rights and responsibilities when it comes to providing care for the person they are overseeing.

3. The Power Of Attorney should always communicate and collaborate with other  care team members

This will help ensure that everyone is on the same page when it comes to providing care for the individual.

How can family and friends support caregivers in their role as Power Of Attorney?

Family and friends can provide support to caregivers in their role as Power Of Attorney by:

1. Offering practical assistance with tasks such as grocery shopping, laundry, and cleaning.

2. Providing emotional support, listening to the caregiver without judging, and offering words of encouragement.

3. Connecting the caregiver with resources and information about caregiving.

This could include connecting them with support groups, online forums, or articles about caregiving.