6 Things I Learned About Power Of Attorney

By Guest Blogger Keri Allen

Keri is a passionate advocate for FTD, all in honor of her father, Mark. Keri is a social media consultant and a dear friend of Remember Me.

The Legal Side of Dementia Care, Part I

Let’s just start by saying: I AM NOT A LAWYER. I have no fancy law degree or even a social work background. I’m a teacher, a writer and a mom of two little kids. 

So if you would have told me that at this point in my life, I could walk you through the detailed, complicated process involved in caring for someone with a neurodegenerative disease, I probably would have laughed and assumed you had confused me with someone else.

I never could have guessed that I would know so much about elder law, about legal proceedings for disability care, about things like guardianship and power of attorney… 

But here I am. Living the dream.

And I know if I could write a blog post to 2017-me about top things you need to know going into an FTD journey caring for a parent or loved one, POA would probably be at the top of my list. So here we go:

Usually when a loved one begins showing signs of cognitive decline, you have a host of obstacles and difficulties that feel like they all need to be tackled at once RIGHT NOW, needs that typically fall into four major areas of safety concerns:

1. Physical - Are they putting themselves or others in danger? How do I care for their physical needs? Are they safe living on their own or driving?

2. Medical - What is even going on? Are we sure about the diagnosis? Which meds should they be on - or off? Can I get them to the right doctors or facilities to receive proper levels of care? (Or if you’re like me… what even IS a neurologist?!)

3. Emotional - How can this be happening to them? Where did my loved one go and who is this new person taking over their body? How can and should I grieve?

4. Financial - How can they pay for their care? Can we afford their care? Do they have medical insurance? Which doctors accept Medicare/Medicaid? Do they need disability financial assistance?

After you get that initial diagnosis, you have to prioritize: You have to stop the bleeding.

BUT WHAT DO YOU DO FIRST?

Usually, after you get your diagnosis, your first stop on the dementia triage Emergency Room is the legal department, because the reality is, it might prove difficult to handle any of those four safety areas without making sure you’re within your rights in the eyes of the law. So let’s start there.

I’ll walk you through my personal crash course in relevant elder law and the process of becoming someone’s legal representative. Again, I AM NOT A LAWYER - and sometimes laws will vary from state to state… But this is just my understanding from personal experience of how the overall process works if you find yourself in the position of needing to explore taking over legal decision-making for a loved one whose capabilities have declined due to neurodegeneration. In this post, I am not going to go into when you SHOULD get a POA… I’m just going to talk you through the process, and then tell you what POA looked like for me and my family. You and your family have to make your own decisions based on your unique situation.

#1 - Power of Attorney (POA) is a very powerful document and fairly easy to obtain.

Especially in the behavioral variant, people with FTD experience compromised judgment and an increasing inability to handle their own finances and legal affairs. As such, they need loving, fast-acting advocates to come alongside them to help them get the help they need.

ENTER THE POA.

POA is an abbreviation for Power of Attorney. Oxford Dictionary defines this as “the authority to act for another person in specified or all legal or financial matters.” It is a binding legal document that a person signs to give someone they trust the power to act on their behalf in certain legal, financial, or healthcare matters. This means your POA can make decisions on your behalf and sign legal documents as if it was you yourself signing the document.

Now… let’s get something straight: This is a very powerful, very binding, very serious legal document that you should only consider if you need (read that again: NEED) to take over someone’s legal, financial, or medical decisions for them. Next to marriage, it is likely the most binding document in existence in the American legal system that gives another person the most power over another’s life, so consider carefully before asking for (or giving) a signature on something like this.

Unsurprisingly, when people experience cognitive decline and a decrease in judgment abilities, this makes them extremely susceptible to those seeking to take advantage of them by asking them to sign documents like this. POA is a powerful tool that can be a blessing in the hands of the right, loving, well-informed people - or an immense curse in the hands of those who either from malice or ignorance mismanage the power to handle someone else’s legal, medical, or financial affairs.

#2 - There are different types of POA.

POA comes in several forms, so I’ll try to make this as simple as possible. I find it helpful to think of it in terms of time frames and powers. POAs have three different time frames:

1. Non-Durable -  Only lasts for a specific amount of time or for a particular transaction. Once the time or business deal is over, the POA is no longer binding or valid.

2. Springing - Goes into effect when certain conditions are met (usually the POA is only valid once the person is incapacitated or unable to make decisions for themselves.)

3. Durable - Takes effect immediately and continues to be binding even after the person is incapacitated or dies. 

POA can also grant different areas of power:

1. Limited / Special - Grants the person power to act in your place, but only with specific decisions or areas, typically:

   • Medical / Healthcare - Power to make your medical or health related decisions, but not any legal or financial decisions

   • Financial - Power to manage and control your finances, but not your medical or healthcare decisions

2. General - Gives someone the authority to sign and act in your stead in both medical AND financial decisions

So following this logic now: The most powerful POA you can be for someone is a durable (i.e. forever-lasting) general (both medical and financial) POA. 

POA can be given to one person performing both financial and medical roles, or it can specify different people for each role. It just depends on your loved one’s situation, whether or not the decision-making should be held by one person or whether it should be split up amongst family members.

#3: POA forms can be obtained through your elder law attorney, or purchased online. (I went the online route.)

Here is where you can go a couple different ways. If you have the budget and the time, the ideal course of action would be to consult a NAELA elder law attorney in your state.

However, oftentimes speed is of the essence, and the person’s finances may already be in shambles by the time a proper diagnosis is obtained. When this is the case, the most expedient course of action is to download a template form from a site like LegalZoom. These forms usually range around $50 (as opposed to spending potentially hundreds of dollars to have the forms drawn up and explained by an elder law attorney,) and you can download them easily off the internet.

#4: You must, must, MUST explain POA to your loved one and gain as much informed consent as possible.

This next bit is extremely, extremely important - so important that I do not want you to keep reading until you have read this next part at least three times:

You need to explain the POA form to your loved one in simple language that they can understand before you ask them to sign in front of a notary (which is required to make POA valid.)

Yup. Stop. Go back. Read it again. You do not have to explain in complicated legal terms. You do not have to read the entire form to them, as they will likely get overwhelmed. But you do have to explain that by signing this document, your loved one is giving you their permission to help them and act on their behalf in medical or financial decisions.

EVEN IF YOU AREN'T SURE YOUR LOVED ONE WILL UNDERSTAND OR REMEMBER: YOU NEED TO EXPLAIN IT TO THEM. For your own integrity's sake, for their dignity, and also so that if it's ever questioned, you can honestly say you did your best to help them understand what they were signing.

Scary, scary things can happen if a person gives POA to someone who doesn't have their best interest at heart. So you need to act quickly and ethically to ensure your loved one is protected from those who might seek to take advantage of their mentally compromised state. This is an URGENT safety issue, which is why it makes the top of my list for things to handle immediately after you find out your loved one has FTD.

In addition, the close family members involved in the person’s care should be aware of and agree on who is receiving POA. This can sound daunting, as families can hold different opinions as to who should hold decision-making power. But as intimidating as it may sound depending on your family dynamics, the best course of action really is to be upfront with all involved parties and get agreement beforehand rather than having to resolve differences in an (often expensive) courtroom after the fact.

Now, this doesn't mean calling Auntie Susie who hasn't seen your loved one in 5 years. I mean next of kin and/or the people currently involved in the person's daily care or financial concerns need to be agreed. If they’re not already on the care team, they don’t get an invitation now.

When we were considering POA, our elder law attorney ingrained in me the importance of informing - and ideally getting approval from -  all next of kin (i.e. the person’s spouse, kids, etc.) in addition to the loved one themselves before proceeding with POA. Things can get very complicated very quickly otherwise.

#5: Signing of POAs must be witnessed by a notary in order to be valid.

Because POA is such a powerful, binding agreement, you must get the form signed in front of a certified notary. Notaries are there to ensure each party is who they say they are and each party understands what they are signing.

You can go about this in a variety of ways… Notaries are usually pretty easy to find. Most banks have a notary on duty, but you can also just look up people in your area who are certified and contact them directly. Your elder law attorney also should be able to direct you to reliable notaries. (Most workplaces even have a notary around, if you ask around.)

Both you and your loved one will need to bring valid IDs to the signing, as the notary is required to see proof of identity before making that legally binding signature. The notary may ask you or your loved one some basic questions to make sure both of you understand the document before signing. You may need to translate it a little bit for your loved one at this point if it's going over their head or upsetting them because they can't understand what is being said.

Once the notary has confirmed your identities and confirmed that you both understand what is being signed, they will ask your loved one to initial the various lines on the form (or write an X if they can't do initials.) Then you, your loved one, and the notary all sign at the end, with the notary stamping the document with their seal.

Pro Tip: Beforehand, it may be helpful to highlight the lines where your loved one will have to put their initials/X/signature. I have found this makes it less overwhelming and easier for them to follow along.

#6 - Original POAs should be filed in a secure place, such as a safe or elder law attorney’s office, and at least one copy should remain with you at all times.

This is a very important, legally binding document that you do not want to lose the original for. In legal proceedings, you have to show the “wet signature” document - i.e. the original, ink-signed POA, but most of the time a scan or copy will suffice.

Especially when caring for a loved one who is still living independently, you never know when you will be called to their side to make an important decision that will require you to show your POA form in order to give you the authority to act on their behalf, so I kept a copy of mine in a red folder in my car while my dad was still living on his own. 

—

Power of Attorney is usually a great place to start as you begin the journey of becoming an involved caregiver and advocating for your loved one with FTD.

While things like guardianship involve court proceedings, higher expenses, and hired attorneys, obtaining POA is a relatively inexpensive, simple process that allows families to quickly step in to help their loved one get things like health insurance, medical appointments, and handle other complex tasks that people affected with FTD often struggle to do for themselves.

So in summary, here our six things to know about POA:

1. Power of Attorney (POA) is a very powerful document and is fairly easy to obtain, relative to guardianship.

2. There are different types of POA.

3. POA forms are available for purchase online or from an elder law attorney.

4. You MUST explain POA to your loved one and gain as much informed consent as possible - and ideally get approval from involved family members as well.

5. Signing of POAs must be witnessed by a notary in order to be valid.

6. Original POAs should be filed in a secure place, such as a safe or elder law attorney’s office, and at least one copy should remain with you at all times.

Final Disclaimer: THIS IS NOT FORMAL LEGAL ADVICE - just some worldly wisdom from a caregiver who used POA in the course of caring for a loved one. To receive personalized, professional legal counsel, please search for the National Association of Elder Law Attorneys website to find an attorney in your state.