Preparing power of attorney can be tricky

In fact, looking back, it seems to me that I was clueless until I was about 50 years old.—Nora Ephron, American Author

Today’s question:  “We had to put dad into a nursing home.  The staff there is telling us we need to get a power of attorney.  Can you prepare a power of attorney for us?”

That is really a simple question.  It almost seems logical that it would have a simple answer – yes or no.  A power of attorney is, actually, a fairly straightforward document.  In fact, you can download a form off the internet.

However, if you call our office to ask that question, you will need to answer a lot of questions for us before we can get to the “yes or no.”

One reason the issue is complicated is that there are different kinds of documents that are all called “powers of attorney.”  As if that wasn’t confusing enough, some states, some health care providers and even some law practices use different terms: “health care proxy,” “health care power of attorney,” “durable power of attorney,” for example —for what are essentially the same things.

Generally, there are two well-recognized kinds of power-of-attorney documents.  One kind designates some one else who can make decisions about the signer’s health care —medical authorization, placement decisions and the like.  The other names some one to handle financial matters —check signing, sale of property, transfers of assets into a living trust even gift-giving (in some cases.)

When the nursing home tells you that you need a power of attorney for your recently-admitted father, they are perhaps expressing concern about the health care power of attorney.  They want someone to be able to approve medications and treatments, to make decisions about hospitalization (or refusing hospitalization) and someone they can notify about your father’s condition and progress.  They may also be interested in making sure you have power to handle his finances, especially to pay his nursing home bills, but that is probably not their primary focus at the beginning.

Once you tell our office “I think dad will understand the power of attorney and be willing to sign it.  Can you please come to the nursing home with one and get him to sign?”

It would be a less difficult world if the process were indeed that easy.  A good attorney will want to meet with your father, perhaps more than once.  While many attorneys do make home and facility visits, they probably charge a bit more.

Furthermore, a key element of representation of your father requires that he himself be the client – that may mean that after we have talked with him extensively regarding his situation, we may actually be uncomfortable preparing these important documents for him.  Our questions may revolve around whether he actually has legal capacity and meets the state’s requirements for competency to sign a power of attorney.  Or our reluctance may revolve around feeling that there is too strong an influence from one child with possible negative consequences to other siblings.

In that case, we are likely to refer your dad to another lawyer.  We will probably refer one geographically close to him, and give you information about how to make the initial contact.  The new attorney may come to a different conclusion.  We want to make sure, though, that (even if you make the call and set up the appointment) there is no question in your father’s mind that his lawyer is, in fact, his lawyer.  You may be absolutely certain that you and he are on the same page.  However, we sometimes see situations where that turns out not to be the case, and we all want to make sure dad’s wishes are paramount.

If your dad is ultimately unable to sign a power of attorney, there is a mechanism for family members or friends to make health care decisions.  The Maryland Health Care Decisions Act recognizes that close relatives or friends have the patient’s best interest at heart and, with the patient’s doctor, will make the best decision for the patient.

After two doctors certify that a patient is unable to make a health care decision, the doctors will ask whether the patient has named a health care agent in an advance directive.  If there is no appointed agent, the doctors will look to the closest relative or friend to make health care decisions.  This person is called a surrogate. Marylandlaw  lists an order of priority for choosing a surrogate.

There is no similar mechanism for financial decisions.  If your father has only his name on his bank accounts (or brokerage accounts, car title or deed) then it will require either a power of attorney or a guardianship to get authority to liquidate assets, pay bills or even request annual minimum distributions from his IRA.

If you are thinking how complicated this is, it’s true that you can get a power of attorney form off the web, fill it out and get him to sign it.  It might work just fine, especially if you have taken care to make sure it meets the requirements of your state’s law.

If it doesn’t “work just fine,” you could look like you were trying to take advantage of dad.  If someone later decides your form is inadequate or not property signed or has some other defect, you might not find out about it until after dad is clearly incapacitated and unable to sign a new power of attorney.

What a good elder law attorney offers is professional counsel, answers to complicated and personal questions and peace of mind.  Often, those are well worth the fees.

Senior Moments is grateful to Fleming and Curti, well-knownArizona elder law attorneys for some of the thoughts in today’s column.

Thank you for reading.  Stay well.  See you next week.