When going through end-of-life planning, most of us think about writing a will, but those are helpful to our loved ones only after we’re gone. A power of attorney document is crucial while we’re still alive.
In fact, after using my POA for my mother multiple times since dementia began impeding her ability to care for herself, I’ve come to believe it’s the most important legal document to have.
The online version of Black’s Law Dictionary defines a POA as a document “authorizing a person to act as the agent or attorney of the person granting it.” More specifically, my mom granted me durable POA, meaning it stayed in effect when she was no longer mentally capable of handling matters on her own.
After using my POA for my mother multiple times since dementia began impeding her ability to care for herself, I’ve come to believe it’s the most important legal document to have.
It has enabled me to pay my mom’s bills and sell her house and car. Because it also designates me her health care surrogate – the person who can make medical decisions for her – it was up to me to approve treatments when she developed a bilateral pulmonary embolism two years ago. Today, I’m able to consult with hospice nurses and the care team at the assisted living facility where I moved her, also thanks to the POA.
It’s worth noting that a health care surrogate or medical POA is not the same as a living will. The latter lays out what medical treatment you want administered should you become incompetent. The former enables someone to make care decisions that a living will may not cover. For instance, my mom signed a do not resuscitate order, but she didn’t lay out what I should do about that pulmonary embolism.
Without the POA, a court would have had to designate someone to handle these things for my mom, a time and money drain. In that scenario, the person in need of help loses control over who makes important decisions for her, and the designee – also called a conservator or guardian – may not want the responsibility, possibly leading to questionable decisions.
My mom had an advantage in creating a POA. She worked for several years as an assistant to Elaine Schwartz, an attorney in Florida who specializes in elder law. Schwartz, a former state representative, put together a comprehensive document that has eased my transition from daughter to caregiver. I talked with her to find out just how crucial a POA is and what it should cover.
Q: When is the best time to make a POA document?
Schwartz: Any time. I mean, you don’t know. People don’t always think they’re going to become disabled. Plus, you have to be of sound mind to sign it.
Q: What should it cover?
Schwartz: There’s a combination of things that you need: a health care surrogate and a durable power of attorney. Those two things, guess what they stop. They stop you from needing a guardianship, [a legally authorized relationship between a competent adult assigned responsibility for an incapacitated one]. If a person becomes disabled and can’t do anything, if they have a power of attorney and a health care surrogate, that pretty much covers it. If they don’t and let’s say they go to the hospital and need a transfusion and they’re in a coma, who’s going to approve it?
Q: So, a POA covers only the financial aspect?
Schwartz: In some states, yes, but there’s also a medical, or health care, power of attorney. [The American Bar Association released a chart in January 2018 showing characteristics of each state’s health care POA statutes.]
Q: The laws are different in every state?
Schwartz: We have a very fractured system, where every state has its own requirements. What works in one state might not work in another.
[Note that the National Conference of Commissioners on Uniform State Law approved the Uniform Durable Power of Attorney Act in 2006, which states can adopt to gain consistency in the application of POAs. So far, 26 states have enacted it, and three more have introduced it for consideration this year.]
Q: What are some things to look out for?
Schwartz: The different powers have different consequences. The power of attorney removes any liabilities of being jointly on a bank account, but some things you can’t be joint on — for example, an IRA, [or Individual Retirement Account]. Therefore, you would need the power of attorney. Let’s say the IRA says it will go to you when your mom dies, but you’ve gotten so wealthy, you don’t want anything that comes in from your mother, so you’re going to ask that she leave it to your kids instead. To make that change, you need the power of attorney to say you want to make beneficiary changes to the IRA.
Q: There are several websites where people can create POAs. Are those legit?
Schwartz: You can download them from the internet, but you’re not sure they’re right. They may be not giving you such great advice.
Q: With the various state requirements, it’s probably better to have an expert go through it with you line by line. How much does it cost to have a POA drawn up by an attorney?
Schwartz: They’re not expensive papers. It’s often just a few hundred dollars.
Stephanie Kanowitz is a Fairfax, Va.-based freelance writer, fitness instructor, mother and caregiver to her mother, who was diagnosed with dementia in 2012. Stephanie earned journalism degrees from the University of Florida (bachelor’s) and American University (master’s), and her work has appeared in The Washington Post, Washington Post Express, Red Tricycle, the Washington Diplomat and the Kveller blog.
