One of the most common concerns I hear from people is “My older parent’s behavior is concerning me and I’m worried about her mental abilities.”
As I explained in a related article: it’s not always dementia but often it is. And unless an older person has done a good job planning ahead, it can be very hard and messy for others to intervene as needed.
But hopefully, that’s not yet your situation.
In which case, you might be wondering: Given that it’s so common for aging adults to eventually start slipping mentally — or to be suddenly disabled due to an accident or serious health crisis — what kind of planning should older adults and families do to avoid this kind of situation?
I’ve done some research on this question, and here’s what I found out.
One of the simplest — and often less expensive — smart planning approaches is for an older adult to complete a general durable power of attorney (POA) document.
Especially if the powers granted are broad — which they often are — a POA can enable the designated person (known as the “agent”) to step in and assist with finances, housing, safety, and anything else covered by the POA .
A durable POA allows an agent to take action once the older person is “incapacitated.” In California, such POAs can be used to move a person with dementia to a different living arrangement.
Now, the durable power of attorney approach isn’t perfect. Over the years, I’ve noticed that two broad categories of problems come up:
- Concerns as to whether the agent might be using the POA to financially exploit the situation
- Issues related to determining incapacity and whether the older person should be overridden.
In truth, I have occasionally encountered situations in which different doctors had different opinions on whether an older person was incapacitated. This troubles me, because agents should really only be stepping in and overriding older adults if we’re all sure they’ve lost capacity and are making decisions that don’t serve their overall goals, or are hazardous to others.
Still, a general durable POA is an excellent approach to consider. But I would recommend you pay special attention to how the document is drafted, in order to reduce the risk of financial exploitation and to avoid pitfalls related to determining incapacity.
In this post, I will share:
- What I’ve learned about general durable power of attorney documents
- Why determining incapacitation is often problematic in the real world
- Tips on avoiding a common POA weakness
- What to know about including third-party accounting and other strategies recommended by the American Bar Association, to reduce the risk of financial exploitation by an agent
- Useful resources I’ve found online for more information
Note that POAs are governed by state laws, so the details can vary from state to state. But the general principles are likely to be similar throughout the country. In this post, I’ll focus on California, since this is where I live and practice. If you — or your older relative — don’t live in California, you’ll need to look for specifics for your own state.
The Basics on General Durable Powers of Attorney
A power of attorney document essentially allows a person (known as “the principal”) to give someone else (“the agent”, also known as “attorney-in-fact”) the ability to act on the person’s behalf. The principal needs to be of “sound mind” when signing the form.
A power of attorney generally specifies:
- What kinds of activities and decisions the agent can take on behalf of the principal,
- Whether the agent’s power is effective immediately, or only once the principal is incapacitated,
- Whether the agent’s powers remain effective even if the principal becomes disabled or incapacitated.
A durable power of attorney remains in effect even if the principal is incapacitated, so older adults should always use durable POAs when planning ahead for the future. (Remember: hope for the best, plan for the likely & quite possible.)
In California and in many other states, there are POA forms specific to healthcare, and medical decisions are excluded from the general durable POAs. This means you can designate one person to be your agent for health decisions, and another for financial or legal decisions.
Now, experts often advise older adults to complete both a durable financial POA and a healthcare POA. However, when I looked into this further, I discovered that in California, financial powers are usually included within a general durable power of attorney form.
Here is one commonly used version of the California General Durable Power of Attorney form. A person using this form can give the agent all the powers listed, or can just specify a few of them.
But it’s important to realize that as long as the form complies with the relevant California probate code, the general DPOA form can be written to include more specifics about the agent having the power to move the principal to a new residence and to make personal care decisions.
You’ll also want to consider including additional language recommended by the American Bar Association’s Commission on Law & Aging, which can reduce the risk of financial exploitation. You can learn more about the five safeguards they recommend here: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. (I also will summarize these in a section below.)
How are older adults deemed incapacitated?
A durable power of attorney document allows the agent to make decisions either right away, or when the principal is “incapacitated.” In the documents I’ve reviewed, the principal usually has to specify whether the agent has authority immediately, or whether the authority should “spring” into action upon incapacity.
But who determines incapacity, and how? Obviously, this should be a crucial issue for those “springing” POA documents that only allow the agent to take over if the older person is incapacitated.
But even for a POA that gives immediate authority to the agent, the question of defining incapacity can be important. That’s because if the principal and agent ever disagree, the principal gets to override the agent — unless the principal is incapacitated.
So it seems clear to me that defining incapacity is important. However, this seems to be a serious weak point in many POA documents. Having reviewed several of them in the course of my years practicing geriatrics, here’s what I’ve seen regarding the criteria for determining that the principal is incapacitated:
- Some POA forms say nothing about how to determine the principal is incapacitated.
- Some POA forms say something like this: “[incapacity] may be evidenced by a written statement of my regularly attending physician or two other qualified physicians or by court order.”
- One POA form said: “I shall be determined to be incapacitated, as determined solely by my attending physician and in writing delivered to my Agent.”
(Learn more about how capacity should be evaluated in this article: Incompetence & Losing Capacity: Answers to 7 FAQs.)
The Pitfalls of Incapacity Determination
A few years ago, I consulted on an older woman who had been diagnosed with “severe dementia” based on a neuropsychological evaluation conducted during a hospital stay. Based on this, the agent took over and moved the older woman to a facility.
The problem was that when I met the older person three months later, her mental state actually seemed quite good. Now, she did make several errors on the MOCA test I administered, and likely would struggle to manage finances correctly.
But she certainly was much better than described. Which is not surprising actually, because we know that many aging adults get mentally much worse in the hospital, due to delirium. And we know that it can take months for delirium to resolve; I once had a patient slowly get better over a whole year.
Sadly, this older lady was pretty unhappy about having been moved to a facility. But since she’d been determined to be “incapacitated,” her agent was now the one making the decisions.
(Now, technically if an older person recovers mental capacity and then disagrees with her agent, the agent cannot overrule her. But in practical terms, once a person has been labeled as “lacking capacity,” it can be hard for her to challenge her agent’s authority without pursuing a court process.)
An added problem: prior to hospitalization, she hadn’t had a regular primary care doctor, and she didn’t have any close family. So there was very little information on how her mental state had been prior to hospitalization. Which meant it was harder to determine whether she had dementia, or how advanced it really was.
I share this story because I think it illustrates the pitfalls of incapacity determination and POA forms. These are:
- Capacity can be temporarily impaired or permanently impaired. POA forms usually don’t address this. It would be unfortunate for a person to permanently lose their rights, if later their capacity might improve.
- Most doctors are not trained to evaluate long-term capacity in older adults. But POA forms usually don’t specify what qualifications the attesting doctors should have. Nor do POA forms specify what documentation or evidence a doctor should provide; I have seen many brief statements saying “Ms. So-and-so no longer has capacity to manage her affairs.”
- Some people don’t have a primary care doctor. And an “attending physician” basically means a doctor who has completed residency; it could even be the hospital attending who just met the older person in the hospital. POA forms seem to assume the principal has a doctor who knows him or her well, but that’s a faulty assumption.
In summary, many POA forms are flawed in that the criteria for determining incapacity are either unspecified, hard to apply, or could result in an older adult permanently losing rights prematurely.
Why It’s Essential to Have a General Durable POA
Given the pitfalls of general durable POA forms, some people might conclude they are better off not giving anyone power of attorney, for fear that they’ll lose their rights inappropriately.
Furthermore, giving another person the authority to manage your finances is a big deal, because historically, POA forms have not included clauses that enable others to exercise oversight of the agent. So it is often possible for an agent to misuse or even steal an older person’s financial assets.
For these reasons, many older adults never get around to completing a durable general POA.
But frankly, this is usually a mistake. Despite the potential for a POA to be misused, things almost always go worse for aging adults when no POA has been appointed.
That because in the absence of a POA, a family may need to go to court for conservatorship in order to take over the affairs of an older loved one who has been incapacitated by an accident, a health crisis, or even developed a chronic mental condition such as Alzheimer’s or another dementia. That is a time-consuming and expensive process, plus it usually means that whoever becomes conservator will have to provide regular reports to the court.
So provided an older person still has capacity to complete legal paperwork and make major decisions, it’s better to complete paperwork to allow someone else to take over affairs without a complex court proceeding. A general durable POA can enable this.
For a Better General Durable Power of Attorney
Reminder: I am not an attorney. But given the problems I’ve seen people encounter with their POA documents, I would really recommend that any general durable POA document you — or your family member — completes address two key issues:
- Better language specifying how incapacity is determined, and
- Protective clauses enabling oversight of the agent’s activities, to reduce the risk of financial exploitation.
Addressing incapacity
My feeling is that the incapacity specifications should account for the possibility of delirium, and should provide for the possibility that the incapacity might get better. Alternatively, the language needs to do a better job of making physicians state that the principal has permanent and irreversible changes to the thinking abilities, as demonstrated by the problems not improving over at least 3 months, or some such.
I haven’t yet seen an actual POA that contains such language, but I did find an online legal article titled “Elder Law Incapacity Planning” and it suggested this language, which is better than most:
” [Trustee] shall be considered incapacitated if the Trustee becomes unable to manage his or her business affairs due to illness or for any other cause, and that incapacity is likely to continue.” (pg 7 of PDF)
(By the way, the sample health care directive addendum on page 5 of the PDF is impressive in its specificity and clarity about what someone might want in the event of advanced dependency; would recommend people take a look.)
Reducing the risk of financial exploitation
Historically, most power of attorney documents have allowed the agent to have a lot of power to manage the principal’s finances and affairs, while requiring virtually no oversight.
Most agents dutifully do their best on behalf of an incapacitated older person. But an unscrupulous (or financially needy) agent can easily divert or misuse funds.
To address this issue, in 2018 the American Bar Association’s Commission on Law & Aging published an issue brief, suggesting several safeguards that can be included when drafting a durable general power of attorney, to reduce the risk of financial exploitation.
I recommend making note of these, because as of today, they are NOT routinely included in most durable POA documents unless you specifically request them when getting the document drafted.
Here are the five key safeguards to consider:
- Third-party accounting. This means the agent will have to provide records of financial transactions to someone else.
- Second signatures for major transactions. This means the agent will have to get a designated other person to agree and sign, for certain major financial transactions (e.g. selling a home, liquidating a major investment).
- Power to revoke. This authorizes a trusted third party to revoke the power of the agent. This could also be used to authorize Adult Protective Services or another agency to revoke agent’s authority. (Without a power to revoke specified in the document, it usually requires court intervention to remove an agent as POA.)
- Define gifting powers. This means limiting the agent’s authority to bestow gifts, either by prohibiting gifting entirely or by clearly specifying permitted recipients and/or limits on amounts.
- Limiting powers. This can be used to prevent the agent from changing the right of survivorship for bank accounts, or beneficiary designations for trusts, life insurance policies, or other similarly valuable assets.
Although these safeguards are especially intended to reduce the risk of financial exploitation, the increased transparency — and limits on the agent — can also help mitigate a much more common issue: family conflicts over what an agent is doing with an older person’s money.
For more details regarding these safeguards, and for sample language to consider including in a POA, I highly recommend reading the American Bar Association’s 2018 Issue Brief: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation.
We also have a podcast episode featuring the attorney who authored the issue brief, David Godfrey JD, of the ABA’s Commission on Law & Aging: 091 – Interview: Reducing the Risk of Power of Attorney Abuse.
To complete a better general durable power of attorney, it’s best to work with a lawyer experienced in elder law in your state. Qualified attorneys can help you decide on many important details, such as how many agents to appoint and making provisions for a successor agent. (Some people appoint two people as agents, which means they can collaborate and also potentially keep an eye on each other.)
Summary & Useful Resources
In summary:
- A general durable power of attorney can give the agent pretty broad powers to manage an older person’s money, assets, support services, and even living situation, once the principal (meaning, the older adult) has been “incapacitated.” This means a general durable POA is a good way to plan for the possibility that an aging adult could become mentally impaired.
- Most power of attorney documents will not include safeguards to reduce the risk of financial exploitation, unless you specifically request them.
- Many power of attorney documents don’t do a good job of defining what exactly constitutes “incapacitated,” or who determines “incapacity” and what evidence they should review in doing so.
- Older adults can reduce the chance of being inappropriately deemed “incapacitated” by making sure their general durable power of attorney includes language specifying how incapacity is to be determined. I would recommend language that helps the agent distinguish between temporary and permanent incapacity. I also believe attesting physicians should have to provide some evidence for their conclusion that a senior is permanently incapacitated.
- Older adults should avoid having no general or financial durable power of attorney. Despite the possibility that a person may inappropriately be deemed incapacitated — or that the agent may not make appropriate choices — it is probably riskier overall to have no mechanism allowing others to step in.
Resources:
Here are some online resources that I’ve found are especially useful:
- “Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation“, from the National Center on Law and Elder Rights, in collaboration with the American Bar Association Commission on Law & Aging
- “The Durable Power of Attorney: Health Care and Finances” from Nolo.com
- “Elder Law Incapacity Planning” by Cynthia L. Barrett, Marquette Elder’s Advisor
- “Questions & Answers on Powers of Attorneys” from Columbia Legal Services & Senior Services (WA state)
- “Frequently Asked Questions About Powers of Attorney” from CTLawHelp.org
- “Guardianship or Power of Attorney: Which One Do YOU Need?” from Wake Forest University Elder Law Clinic
- “7 Decisions to Make for Your Durable Power of Attorney” from Margolis & Bloom, LLP
Now, can you recommend any resources to help aging adults create better durable powers of attorney? Please share below!
You can also learn more about capacity should be evaluated in this article: Incompetence & Losing Capacity: Answers to 7 FAQs.
Last but not least, we have some additional useful resources included in the show notes for our related podcast episode: 091 – Interview: Reducing the Risk of Power of Attorney Abuse.
I’ve been advised by my trust attorney to explore the California Medical Association versions of an Advance Health Care Directive & Physician Orders for Life Sustaining Treatment (POLST). One reason is due to the familiarity by California physicians that would avoid confusion on how to handle the directives.
I haven’t made a decision yet, but it looks like a good resource.
http://www.cmanet.org/about/patient-resources/end-of-life-issues/
Hm, I’ve seen lots of problems related to healthcare directives but usually the problem is not that doctors aren’t familiar with it. It’s more that the statements in the directive don’t provide much guidance for many common types of health crises or health decisions.
I’m not familiar with the CMA’s directive and it’s not online for free. My guess is that it looks similar to the pretty typical directive available here on the CA attorney general’s site. It’s not very sophisticated and doesn’t provide guidance for many of the dilemmas that do come up.
I prefer the easy-to-read directive created by my colleague Dr. Rebecca Sudore, who is a geriatrician who studies advance care planning. It is available (free) on the Institute for Healthcare Advancement website here.
I also have some other posts on this site related to better planning for health crises, detailing some common pitfalls to try to avoid. You can find them by searching the site or by looking under the Popular Topics tab.
I have a durable power of attorney in the state of Florida with a financial and incapacitation letter from his physician. The bank cooperate office in north Carolina is not recognizing it. What to do?
Hi Cindy. That must be frustrating for you! I am not a lawyer, and I practice in Canada, but it may be that the rules about POA vary from state to state. A first step might be to ask the corporate office what is required so that you know what to do next. This podcast may be helpful. Good luck.
Hi Leslie, Thanks for your insightful writings. I’d love to hear your reflections on my biggest challenge these days with my elderly parents: what is my job? How do I know when to intervene and when not to? They are competent, but that doesn’t mean they haven’t indicated interest in scams in the past, or couldn’t simply make bad financial decisions. It’s hard not to be hypervigilant and nosy out of protectiveness (for myself as well as them). And how do you tell when they are no longer competent without allowing a catastrophe to occur? I don’t see much written about this dilemma, though I’m sure I’m not the only one to experience it. If you know of any good resources I’d love to know about them.
Those are excellent questions: what IS your job, and when should you intervene?
There are many ways to answer this question; at some point I may try to write a post with a more thorough answer. But here a few brief thoughts in response.
First of all, one way to approach this is to ask your parents the question. What do THEY think your job is, or should be, when it comes to assisting them? And when do they think you should intervene?
A research study found that many older adults were aware of potential “advance life events” such as hospitalization, developing dementia, or otherwise becoming unable to remain at home independently. The same study found that older adults were expecting their adult children to assist, but hadn’t actually discussed this with them, in part because most people are hoping these won’t happen to them.
But hope is not a plan. So in many cases, it’s a good idea for adult children to gently prod their parents into spelling out just how their adult children should help, if/when the time comes.
A complementary approach is to ask them what their goals are for their last years, and how they see you fitting in with their achieving those goals. For many older adults, common goals include to remain as independent as possible, financially stable, in good enough health, and able to live at home for as long as possible.
Once your parents have articulated goals, any intervention or job you think you should do should be framed as something that helps them reach those goals. (If it doesn’t help them with their goals, you have to seriously reconsider whether you should be doing it.) They will probably have to make tradeoffs. People want to remain independent but often the only way to remain at home for longer is to accept some assistance. Likewise, in later years, a very good way to take care of oneself financially is to allow a trusted person to regularly review or even manage one’s finances.
Otherwise, if they are indeed mentally competent and have the capacity to make all health and life decisions, your job is basically to provide whatever assistance you can, provided you think they would benefit from it, they are willing to accept it, and it doesn’t excessively tax your own health or resources. (Different people and families will have varying definitions of what constitutes excessively taxing their adult children.)
Now if they start to slip mentally, then you will have more grounds for intervening. This is especially true if you think something substantial is at stake, i.e. a serious risk to their health or safety or finances.
Last but not least, in the best case scenario, older parents talk to their adult children well ahead of time, about under what circumstances to intervene and how. So if your parents are mentally ok, you could try bringing this up.
Here are some articles on the site that might be helpful, if you haven’t already read them:
4 Things to Do When an Older Person Resists Help
5 Things to Know about Aging and Financial Decline
Thanks for this very thought-provoking question. I have many more thoughts as this is a very rich and complicated topic, but those will have to wait for another article.
Hello Leslie, Thank you for your informative blog. My mother has progressing dementia and I feel it’s now time to activate her power of attorney which she has me as the ageny. I am going to take her to the doctor and have him sign an “Affidavit of medical doctor as to incapacity of person in order for power of attorney to become effective”. Is it required to be notorized for health and financial decisions? I am in California.
I’m glad you find the article helpful. How lucky that your mother gave you power of attorney beforehand!
I’m not sure of the exact answers to your questions. But as I have practiced in California for a long time, I will share my own experience.
I have at times been asked to provide a written statement attesting to a patient’s incapacity. But no one has ever required me to have this document notarized. I have also read many statements written by other doctors, and can’t recall any of them being notarized. So it’s hard to imagine this being a requirement, especially since getting something notarized would require time and expense on the doctor’s part.
Now, if you are going to start taking action as your mother’s agent, the real question is what proof of incapacity will others require, to allow you to act. So for instance, what proof does her bank need? What proof would an assisted-living facility require? And so forth.
For more on this topic, see
Incompetence & Losing Capacity: Answers to 7 FAQs
037 – Interview: Using Powers of Attorney to Help Older Adults
good luck!
I want to talked about my HUSBAND’S POA brother in law. My husband got confusion and Mental status changed since last year Father’s day and still he do. More he was in hospital 22 days and nursing home 10 days, his younger brother made my husband signed in Durable POA.(because the date of signed was… that time my husband was in nursing home and he has confusion) My husband said he never did that. Is brother in law legal? Or is it Elder abuse?
My understanding is that for a power of attorney document to be legally valid, the person signing it has to have capacity at the time he or she signs.
Having capacity means that the person, in that moment, has the mental abilities to understand what they are signing or the decision they are making; I explain capacity in further detail here: Incompetence & Losing Capacity: Answers to 7 FAQs.
In many states, a durable power of attorney document has to be notarized or witnessed. If you think your husband did not have capacity when he signed the document, then it may not be valid. However, you may need to get an attorney to help you get it invalidated, especially if your brother in law has been acting as your husband’s agent.
State laws will generally determine whether your relative’s actions were legal or not. I would recommend you learn more about capacity, consent, and the concept of undue influence, see here: Capacity, consent & undue influence.
You can also call your local Area Agency on Aging, to find local resources that might help you. Good luck!
What do you think of this idea for dealing with a doctor who doesn’t know me having to make a decision about whether I am incapacitated?
I give friend Amy access to a signed Durable Power of Attorney naming friend Betty (also an attorney who will be executor of my estate) as my agent. When long-time friend Amy determines that I am not making good decisions and that I might need protected from myself and might be incapacitated, friend Amy turns over the Durable Power of Attorney naming Betty as my agent to Betty, allowing Betty to now look after my affairs.
It allows a friend, rather than a doctor to determine my competence, and it relieves Betty of any appearances that she is having me declared incapacitated for any sort of personal gain as she will be compensated as my agent.
Hm, that’s an interesting idea.
I would recommend discussing it with a qualified attorney, or another professional who can help you think through the pros and cons of this approach and other approaches. For instance, what if something happens to Amy, or she’s otherwise not able to play her role in enabling Betty to act?
Also, I will update the article above to include a link to this April 2018 legal brief on preventing POA abuse; there are some good suggestions that can be helpful to you:
Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation
Good luck!
Thank you Leslie for this post. We did our health care POAs a few years back, and I can see the value in updating them to add more detail based on this information. Jim found a book, Peaceful Transitions by Stanley A. Terman, PhD,MD, which he found useful. He suggested we both read it before updating our documents.
Thank you, glad you found it helpful. I met Dr. Terman years ago, he has done some interesting work.
Another book that I think can be quite helpful re planning is the Art of Dying, by Katy Butler.
Quite timely information as my husband and I (83 and 81) are currently completing all the necessary paperwork for a will, POA, etc. We seemed to have outlived most of our friends and family, and we have no children, so we have opted to establish a Trust, the successor of which is our bank’s Trust Department. Much to my surprise, I find the Trust Dept. is not a bank branch but a stand alone company. A growing segment of the population is like us in that they do not have children, and yet there is relatively little information available on how one should proceed. We’re not happy about the Trust Dept, but will be going ahead with using them. If you come across any information or suggestions regarding this kind of situation, we’d appreciate links, etc. Thanks for all your good work!
Thanks for your comment. Yes, the planning can be trickier for those who don’t have children or other close relatives. I have never had a chance to research options for people in your situation, but on the podcast David Godfrey addresses this briefly (he says you have to see what’s available in your state and locally). There are also some online communities for “solo agers”; you could explore those and see what solutions people are finding. Good luck, and I hope you’ll let us know here if you find out anything particularly interesting or useful!
Hi and thanks very much for this information.
I don’t see this article is printable, did I miss the option? I’d love to print and share.
Again my thanks,
Glad you found the article helpful. If you are viewing the article on a computer, at the bottom of the article (right before the comments section starts), there should be a small printer icon visible. Clicking this should generate a print-friendly version for you.
Dr. Kernisan — thank you for all you do to provide invaluable research, insight and guidance to all of us facing the extremely complex, often difficult, challenge of caring for aging loved ones!
Since it wasn’t made clear in this post (though it may be in another post), I just want to emphasize the importance of authorizing someone to have Medical / Healthcare Power of Attorney in addition to authorizing someone to have Financial Power of Attorney (it can be the same or a different person). While Financial Power of Attorney may include instructions and authority for managing financial aspects of healthcare situations, it does not generally include authority to make medical decisions. I further strongly encourage people in this phase of planning to create an Advance Directive for Healthcare, sometimes called a “living will”, which may include assigning Medical or Healthcare Power of Attorney (more on that below), but goes beyond that by specifying in detail what one’s wishes are for many aspects and levels of care. It can include everything from what items one would like to have around them (specific photos, memorabilia, flowers), who one wants to be told about one’s condition and when and how, to medical preferences such as those for pain or anti-anxiety medications, to whether one wants “Life-Sustaining Measures” (such as CPR, blood transfusions, or to be put on a ventilator) — the more details addressed, the more effective and useful the document will be. Creating the document in itself is a powerful and important act in that it encourages one to think these decisions through in advance of the time that one will face them and, as it is also recommended that one communicate these preferences, at the time the document is created, to the person who will be making decisions, it can help ensure that he or she understands one’s wishes and has an opportunity to ask questions about anything that is unclear. Documents vary — some states require a specific state form and some allow any form. Some confer full legal Medical / Healthcare Power of Attorney and some may provide information about one’s wishes but do not confer the full legal powers that a standard Medical / Healthcare Power of Attorney document confers, so it is important to choose a document or combination of documents that provide for both — conveying details about one’s wishes and conferring legal authority for enacting those wishes. Doing so both increases the likelihood that one’s healthcare will be tended to in accordance with one’s wishes, and provides invaluable guidance for the person who will be charged with the very difficult task of acting on that person’s behalf in dealing with these extremely important matters.
**Additional important items to know about and consider in this phase of healthcare planning include: DNRs, organ donation, POLST forms (also called MOLST, MOST, POST) and, if mental health issues are a consideration, Psychiatric Advance Directives (PADs).
Thanks for this comment and for sharing those suggestions. I agree, advance care planning is very important! We have several articles covering the issues you describe, they are listed on our Advance Care Planning topic page.
With regard to the complexities involved in determining incapacity with reference to POA, this is likely obvious, but may be useful to state explicitly; the ideal situation is to have Durable Power of Attorney go into effect at the time it is executed and, thus, not be contingent on a person’s status as incapacitated or not. It takes the whole issue of what constitutes incapacity and who decides whether one is incapacitated off the table. Just as obvious, this can only be done, of course, in a case in which there is absolutely no question about the trustworthiness of the person with Power of Attorney and his or her commitment to and integrity with regard to acting in accordance with the principal’s wishes; this includes acting only on issues that the principal wants him or her to act on and taking actions in accordance with the principal’s wishes / best interests. While this is a high bar, if one has a person who meets that standard, it is well worth assigning that person POA (or persons — more than one person can have POA for an individual) early on as there are many everyday tasks that an aging person needs help with before he or she is incapacitated that require his or her helper to have Power of Attorney. This includes: help with managing banking and investments, handling legal matters, dealing with taxes, managing issues related to real estate, managing financial aspects of living in senior living communities and many others.
Yes, these are good points. We actually recently did a podcast interview with David Godfey, JD, of the American Bar Association Commission on Law and Aging, about their new recommendations to prevent POA abuse. I recommend taking a listen and reviewing their recommendations: 091 – Interview: Reducing the Risk of Power of Attorney Abuse.
Incorporating the recommended protections might help some older adults feel more comfortable about completing a POA.
I will be re-reading this article and links as I prepare these documents / roles for me without anyone able or willing to care for me if incapacitated. It seems many people have this situation, those childless or the children are far away, also a surviving spouse, and those not married. Even those with someone, with age the “other” people die off or move away and too many of us are alone.
I’m very glad if the article is helpful for your planning. Yes, it’s a particular challenge to plan when one doesn’t have a good candidate available to designate as agent for health care and general powers of attorney. In some states, professionals are available for this role; you could see if that’s an option in your jurisdiction. Good luck!
Do you have any suggestions on how to respond to an elderly person who wants to make a large donation to your organization but you are concerned that they may not be thinking clearly. How can you delicately respond without offending them while trying to protect them? I’ve thought about saying “that is a very generous gift, does this fit into your estate planning?”
Hm, interesting issue! Well, personally I might start by asking some additional questions just to see if there is more evidence their thinking is off. Is this person not remembering that they called before? Or saying strange and bizarre things?
You also might want to say something about how for any large donation, you start by asking some additional questions, because you always want to make sure that donors understand the implications of their gift and that it won’t negatively affect their overall financial stability.
This is a way to normalize the questions so that the person doesn’t feel like you are picking on them in particular.
If you really think they are cognitively impaired, it becomes ethically permissible to fudge the truth a bit. You could propose a series of smaller gifts. You could say the next step is that you’ll send them a letter and they’ll have to fill out paperwork. (If they are impaired, they will probably have difficulty executing this.)
In general, I think it depends on whether you are trying to confirm that they have the capacity to make this donation decision, versus pretty sure they are impaired and trying to find a graceful way to prevent a donation you think they don’t understand.
I have more on capacity here: Incompetence & Losing Capacity: Answers to 7 FAQs
Kudos to you for looking out for this person, and good luck!
Hi DR. Kernisan, just a note to say I am 82 Yoa and have a few Cognitive Aging memory problems.
I must say your articles on cognitive aging problems is very informative and helpful.
These articles are helping me understand why I am having a few memory problems.
IMO, you are doing a great service for us geezers, I mean SR. citizens. : )
Thank You.
Thank you, I’m so glad you find the articles informative and helpful!
I have medical and durable POA for my mother-in-law. She has been deemed incapacitated by 2 different doctors due to cognitive decline and this was done sometime after doing all the POA papers. Does having the incapacity form from these doctors cover medical and durable POA as where she can not change anything after being deemed incapacitated?
If I understand you correctly, you are wondering whether your mother-in-law can assign someone else to be her POA, now that she has been found incapacitated? Based on my understanding of the definition of Durable POA, it would depend on how the POA document was written. If her POA indicated that she needed to be deemed incapacitated by two physicians before the POA became active, then it may be that that criteria has been fulfilled. In Canada, where I practice, the regulations vary from province to province (similar to state to state) but generally, a person has to be found incapable of each separate decision before a POA can make a decision for the person. For example, a person could be capable of deciding to have surgery, but not capable of changing their will. The lawyer who would help them change the will would be responsible for determining if they are capable of making that change, based on whether they understand their assets, beneficiaries, and the potential consequences of making a will change (in other words, whether they have “testamentary capacity”). Dr Kernisan answers a similar question here. Hope that is helpful and best of luck!
Hi,
My father is in a memory care facility, Alzheimer’s disease. He is the POA for my mother, I am successor. How do we remove him as POA without doing a whole new POA for my mom? She would like me to take care of her finances, etc. and she is mentally competent but has physical health problems that make it difficult for her to get out and about.
Hi Sonya. I am not a lawyer, but I wonder if the wording of your mom’s POA includes a provision for the possibility that your dad becomes incapable? It might also be worth talking to her banking institution to find out what they require to allow you to handle her finances before you spend any money consulting an actual lawyer. If she assigned a durable financial POA for property or finance, you may be able to go ahead and act on her behalf without any additional paperwork.
This has been the most useful and practical guide I’ve seen on the web. I am a Geriatrician. It is a MESS out there.
I have a specific question re: banks allowing “trusted” loved ones, say in an easy example, a legal spouse, to access the bank account when it is a separate not a joint account, and when the patient has dementia but no DPOA finances.
You can email me back.
Hello to a fellow Geriatrician, although my practice is in Canada! Not sure if I can answer your specific question, but I don’t think a bank can allow access to a non-joint account, even if it’s a legal spouse.
I get all kinds of requests for letters saying a person has dementia “for the bank” and I usually decline the request, and ask for the bank to get in touch with me about what documentation exactly is needed, and why. There can be a lot lost in translation between a family member in my office and the bank,and there can be some misunderstandings on the part of bank employees as well about what a diagnosis of dementia really means. In the current climate of privacy legislation, I hesitate to share any personal health information without good cause.
Hope that’s helpful and I’m so glad you found the article to be useful!
My 80 yrs old mother just got diagnosed with Alzheimer’s. My 57 yr old brother is listed as her POA. My mother is mostly still able to make normal living decisions-her memory is the problem. My brother is actively touring assisted living already. He intends to move her within a month or 2. She has been giving me “support money” monthly since 2014. starting with $300 to now $500 per month. It’s a small amount in the giant sceem of things-however it is VERY important to me. I have no other income at all. My brother has just informed me that when he finds an acceptable living place and starts proceedings to apply for subsidized housing he will be stopping those very important monthly checks to me. (“need to save every bit of money for what could be a very long term living necessity”). It’s only $6000 per year-basically one month of assisted living for her. But it’s the only thing I have to offer to any friends that will let me move in somewhere without paying rent money I will never have. He also stating that the audit to see if she qualifies for subsidized housing deems those monthly payments as trying to hide money from them-that could jeopardize her getting in somewhere. Here are my questions: 1. she is still capable of wanting to continue those monthly checks to me. I can prove these have been happening for 6 yrs!!! these are obviously not attempts to hide money! Would any audit really not understand that it’s been going on for so long-way way BEFORE she was ever having memory issues or looking for housing. They couldn’t possibly hold those against her, could they? Also, would these prevent her receiving housing-even if they thought we were hiding money? my understanding is that she would be penalized an adequate amount of time for private pay before allowing assistance to kick in. SO, its not like she would be left in the street, And the idea of trying to hold as much money for as long as possible-it’s the direct opposite of what he wants….she has to spend down, so cutting me off only prolongs and adds to the “spend down amounts”. In other words: Can he stop those payments as POA? would an audit see them as “hiding money”? would coming to that conclusion dictate getting no housing at all? And finally-being still very clear on her decisions-doesn’t he have to go by her wishes? Can she remove him as POA at this point because he is forcing his decisions on my mother, myself and one other brother (who won’t say a word about these decisions-he just shuts up and lets the older brother do whatever.
Hi Lisa, and I don’t think I can answer all of your questions, not being a lawyer or knowing the rules and regulations about qualifying for assisted living in your region. I really can’t comment on what an auditor would think about your monthly stipend from your mother.
I can offer the opinion that as long as your mom is capable of making financial decisions, she can spend her money any way she wants, but if she were to become incapable, the person she has named in her POA for property would be the one who would make decisions about her funds. Similarly, if she has the capacity to appreciate what a POA is, and what the consequences and risks would be if she changed her POA, then yes, she could change it.
Just because a person has been given a diagnosis of dementia (Alzheimer’s disease, or another type of dementia) does not automatically make them incapable.
I currently have durable POA for my 93 year old mom who has recently become nearly incapacitated, and unable to understand\sign legal documents. It is my understanding that at this point I have authority to act as financial\general POA for her automatically. If this is so, how do I prove it ?
I’m not a lawyer, but my understanding is that if there’s a durable POA for property or finances, the attorney can go ahead and act, if the person has been found incapable.
In my experience, there usually needs to be an assessment of capacity, which is usually done by a doctor or a state or provincially appointed capacity assessor. The attorney may also need to produce the documentation of the POA.