Is financial POA an either-or thing, or do I have to take over everything if it's granted due to incapacity?
I feel like this is a dumb question, but I have read through a few different things and can't find mention of this specific thing. My dad has had dementia for several years now. I am not sure of the stage, but he basically has almost no short term memory and can't follow any sort of complicated subject. I really "should" have POA, but because I live with him and keep an eye on what he is doing, and he takes all my advice, it hasn't been necessary yet. We are going to be facing some more complicated tasks in the near future, however, so I am wondering if I should go ahead and set up the POA (I am named in the trust as the person he wants to have this duty, so that part should be straightforward.) My question is, can my dad still write his own checks if he has been declared incapacitated? Our current system if for him to write checks with my supervision, or sometimes I write them if he is feeling too confused, and then he just signs them. I would hate to take that little piece of independence from him as it is one of the only things he has left. I am trying to balance the idea of taking everything over versus putting him through a bunch of forms that I think will be agitating for him. I am hoping POA means we can both continue to do things, but I am not sure when it is related to incapacity.
We are in CA if that makes a difference.
21 Answers
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Especially challenging if there is an undesirable family dynamic... what most folks don't realize is that there seems to be no real rules in probate, if the judge forms a pre conceived notion you are in big trouble.
The petitioners attorney can allege most anything, truth plays no role, the other side is not even allowed to hear all testimony (any way in DeKalb County GA)
An Ad ligtem who may not be completely impartial, or just does not "get it", could be a challenge at the end & you may not be able to 'counter'
Some petitioner attorneys especially in the case of arguing siblings may drag it out and milk the cow.
Sorry to be so graphic, but it happens.
Does he have life insurance, of cash value? There are measures to take if so. As Medicaid will make you spend down it's cash value
Letting them still have the feeling that they are able to care for the financial issues is good, until it is not. Get on the paper work yesterday!!!, get organized, and ask, ask, ask, a good elder attorney, who isfrom your state, in that each state is different. I have met many older people who had no idea that there are
4 needed in Arizona. Mental Health POA, is impartive, if or when they need to be moved inot a facility, so you can be an active participant, and advocate for them, move them if needed, and make sure all is well.
Good Luck
I was looking into a nursing home for my dad, while my mom was in the hospital. Someone from the nursing home came out with the forms while I was present. She had both parents sign each part of the POA and then notarized it while I was present. Dad had not yet been declared incompetent, so it went smoothly.
I was able to take care of all financial expenses while mom was still alive and now for my dad. I was able to gain access to his reverse mortgage and to speak for him. I have sold all of his properties which has helped to pay for his nursing home. I have been able to change the beneficiaries on his life insurance now that mom is gone, all with my POA.
Don't delay. Cannot say that enough.
About the banking, what might be good is to have the account set up as Dad's in that it is his SS# it is tied to with you as a full signature on the account and that the account is POD (pay on death and this avoids probate if that is a consideration but as you are a signature you can continue to keep the account open after his death so it's good to receive any insurance or SS death benefit sort of funds). The actual checks would have his name first and then your name and have his address on the checks. I would have dad pay his accounts on his own as long as possible but perhaps you watch what's what by your checking the account on-line.
If dad can do this, you want to have everything direct deposited to his bank account too - like any retirements, annuities, his SS, etc and all going into 1 account. Now you can work with Dad in doing & setting this up on line and you keep all the password, #'s etc so that you can monitor all this on-line if need be (and if later on, say 3 years from now you need to change things). The sooner you do this the better as you can't easily do this once Dad's decline in cognitive ability is easily visible. SSA is especially difficult to deal with in letting children even with a valid DPOA (they don't recognize it) do anything on their parents account, so you want to do whatever now & on-line to get his all set up just in case you need it.
About getting legal to do this, a good NAELA elder law attorney can do all this probably for a pretty minimal document fee IF you have all dad's details together. It will be well worth it as you really need to have the DPOA, MPOA, his will or a codicil to his old will, and if your state allows a "Guardianship in Case of Incapacity" form done so that is will meet whatever standard is set up for your state. Really if you do a 2 maybe 3 page history on dad, like his & any spouses date of birth (& birth certificate if you can), or marriages & divorces, of property owned & sold, birth info on all his children and that of his wife (or wives if they had priors with kids), it will really cut down on the legal time and legal costs. If you don't do it, then the elder law attorney will have to have his paralegals do this and you will pay for this professional service which you can do on your own. Really good legal will be in the long run priceless to have done correctly.
This site has a drop down list of elder law by state for your to start your search too. Good luck.
Some folks think an office supply POA form is the ultimate answer... or even try to utilize that cheap ready made form, long after the capacity of the person is severely diminished. in either case was that form in the best interest of either party? perhaps doubtful!
(An important detail on the checking account is for it to be an 'or 'account in contrast to a 'and' account)
Now a word regarding an attorney: just because they are an attorney; does not mean they are familiar or proficient in elder matters. I have seen many POA documents are failing in substance , (after being properly reviewed)
One does not go to a geriatric doctor when the need is a pediatrician.
You can get a POA without the parent being declared incompetent. Sometimes an elder is just overwhelmed with the process of paying bills etc. but understands they need paid so as his daughter you can continue for some time to have him write and/or just sign checks which he is aware need to be paid.
However, as he ages and has difficulty with walking, making it difficult for you to get him to the bank for deposits, or transfers of funds for any purpose--it is helpful to have the POA so you can make the transactions for him. If you need to discuss insurance policies for him, or make medical decisions for him, then a POA and a medical Advanced Directive can be needed. As his daughter, working for him at some stage you will encounter the HIPPA law. The HIPPA law seeks to keep your father's medical information safe from outsiders but in reality it becomes a barrier for you the adult child caregiver. Absent of the Advanced directive with your father giving you rights to his information, your hands become tied and you can't help your father on medical matters. If he is getting confused, you live with him, I would get both the POA and advanced directive in place.
Meanwhile, I think your letting him continue to do as much of his check writing
is great. I used to pay the bills by making out the checks, showing him the bills, then he would sign the check. I would show him I was putting them out in our mailbox. This way he felt he was "handling his affairs" and just getting some help. However, eventually he had difficulty signing the checks, so I would just show him the envelops and tell him we are paying X bill.
Your post shows you are thinking ahead. If your dad is under 80 years old, try to see if you can get him a long term care policy. If you are the primary care giver, you may need to hire caregivers for him. It will be much easier if he has a long term care policy. Most companies sell these policies up to age 80 and of course it is less expensive the earlier you get it.
I would NOT wait too much longer, because if he deteriorates to the point where he no longer understands the purpose of a POA, it will be impossible for him to sign one, leaving you with having to go to court to get such powers (often necessary). Depending on his financial situation, the POA should probably include specific clauses permitting gifting for Medicaid planning purposes; note that store-bought forms (indeed even many attorney-prepared forms) omit these powers, so be sure to work with an attorney who specializes in legal situations of elders (called elder lawyers).
My point to this is, having the POA does not constitute that you are in charge, however, if his Doctor deems he is incompetent, then having the POA will make his life easier, and yours, so that you can carry on taking care of his financial affairs. Social Security does not recognize a POA as a legal document, so that's why I had to go the Rep Payee route. I just applied for my Dad's VA Benefit to help my Mom in the ALF with the Aid and Attendance and the VA also does not recognize the POA so I had to have my mother physically sign the application documents. Seek out an Elder Care Attorney to get the best advice on the correct path and good luck.
In short, the POA is good for managing their finances and allows you to sign on their behalf but it doesn't work for all and one other point, when you get the POA, make sure it's Durable Power of Attorney, where you are able to have financial gain. in the event you need to legally transfer assets to yourself, with the intent of applying for Medicaid.
Btw, though I don't think this applies in your case, nobody can be obliged to accept POA. Anyone who has not thought it through and/or is not confident they will be able to do the job properly ought not to take on the role.
And Maggie is right to caution you that it may already be too late. His lawyer will need to be satisfied that he fully understands all of the implications of POA.