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There are so many changes that take place as you age and it can be challenging to plan effectively. While it’s impossible to cover every contingency, there are some big ones you can be ready for fairly easily. A common problem many face is when an aging loved one becomes incapacitated. A powerful tool that’s useful in this situation is a power of attorney.  However, you need to know how to use it- what kind you need and when it needs to be in place.  

Durable Power of Attorney for Seniors

A power of attorney is a legal document that allows one person (the principal) to give another (the agent) power to act in their place. There are many misconceptions and misunderstandings concerning power of attorney for seniors, however. Consider the following tips:

You need a durable power of attorney.

A general power of attorney remains in effect until the principal either dies or becomes incapacitated. In the case of a senior loved one, you want it to be in effect when they become incapacitated and remain in effect until they pass away. This is precisely what a durable power of attorney does. It can go in effect prior to or when an individual becomes incapacitated and remains in effect until death. It’s important to point out that even a durable power of attorney holds no power after death.

It needs to be signed when you are still competent.

Many are under the assumption a POA cannot be put into place until after an individual has lost legal competency. This is actually the exact opposite of reality. A power of attorney, durable or nondurable, cannot be signed by an individual deemed legally incompetent. You need to have it signed and ready BEFORE the individual becomes legally incompetent. It’s advisable to take care of it before they need assisted living services. Don’t wait!

Work with an experienced local attorney.

While you can find a generic durable power of attorney form online, it’s not advisable. Your durable power of attorney needs to be detailed enough to reflect your unique situation. It needs to be current and include all the necessary authorities.  It also needs to cover the legal requirements of your particular state. If you have a power of attorney that is very ambiguous, it’s easy to challenge. Don’t pull a POA off the internet. Work with an experienced, local attorney.

Separate your medical and financial POA.

It may seem like more work upfront to create and execute two separate documents. However, it will make it much simpler for you when it’s time to use them. It’s also important to protect your privacy. You don’t necessarily want the bank to be privy to all your medical issues or the doctor to have access to all your financial information. Instead, have two durable power of attorneys, one covering medical issues, and the other for financial matters.

When to update your durable power of attorney.

You may have a durable power of attorney in place and wonder if and when it needs to be updated. If there are any significant changes in your life that would affect the POA, it definitely needs to be updated. This could include divorce, death or incapacitation of the agent, or the agent has moved too far away to be helpful. You could also have a falling out with the agent or no longer trust them. The laws governing these types of documents also change sometimes, so it’s good to review your POA every 5 to 10 years.  

Other Considerations

The moment you give your signed and notarized power of attorney to the agent OR send it into a bank or other financial or medical institution, it is in effect. This means your agent could act on your behalf per the POA, even if you aren’t incapacitated yet. By signing the POA, however, the agent is legally agreeing to act on your behalf in your best interest. It is his or her fiduciary responsibility.

You can use what is known as a springing durable power of attorney that would “spring” into effect in the event of a specified trigger, i.e.- a specific disability. If the disability isn’t specified, it will require a doctor’s certification in writing that you are incapable of making decisions for yourself. It’s important to note that this can cause delays for your agent being able to act on your behalf.

It’s Best to Be Prepared

As you age, life changes, and sometimes you need someone you trust to be able to make important decisions for you. If you don’t have a durable power of attorney in place, you may find yourself in a situation where someone you didn’t choose is making those decisions. Don’t wait! Talk to an attorney you trust.

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