Obtaining a Power of Attorney from Elderly Parents

Updated: Oct 12

As they age, our parents lose progressively the ability to handle their own affairs. It makes sense to get a power of attorney (POA) ahead of time for a parent who is already sick, disabled or experiencing mental decline. Further, even if your parent is in good health right now, it is wise to plan ahead for potential challenges. You simply never know when an injury or illness may take away your mom or dad's capacity to manage their finances or make important decisions about medical care. In fact, the best time to start considering a POA when everything is still ‘business as usual’.

The Basics of a Power of Attorney
Considerations on Getting a Power of Attorney
Understand What the Law Allows (and Doesn't Allow)
Your Duties as Agent
Durable vs. Non-Durable Power of Attorney
Discuss the Issue With Your Parent (and Possibly Other Family Members)

The Basics of a Power of Attorney

A POA gives the obtaining party the right to make binding decisions on behalf of someone else. In this arrangement, the person obtaining the rights is called the agent and the person giving those rights is known as the principal. For instance, if you obtain a POA from your mom, you become your mom’s agent. As an agent, you hold financial, legal, and medical rights from the principal. The document should make it clear the type of POA you are receiving, i.e. financial power of attorney or medical power of attorney. Thus, a medical POA will allow you, as an agent, to make all medical decisions on behalf of your parent if they cannot make these decisions themselves.

Considerations on Getting a Power of Attorney

Before you decide to obtain a POA from your parents, it is important to understand the basics and assess which type of POA is more suited. It is also much easier to discuss this stategy with your parents if you know how to explain why it is important that you obtain a POA.

Simplistically speaking, you get a POA for a parent by having them name you as the agent in a document that they sign while sound of mind. However, the process is rarely as simple as it seems, especially when it comes to ensuring that the POA will be recognized by third parties. Things can also become more complicated if you try to get a POA for a parent who is already suffering from dementia, another terminal illness or incurable condition that affects their ability to communicate or make reasoned decisions.

While obtaining a simple POA is not necessarily difficult to do, it does require consideration of what is in the best of interest of you and your family.

Understand What the Law Allows (and Doesn't Allow)

The most important thing to remember is that you cannot get a POA from someone who is already incapacitated. You can only get a POA from someone who willingly and knowingly grants it to you in a signed legal document. They must be able to sufficiently understand what a POA represents, the effects of signing it and clearly communicate their intentions. (If your parent lacks the capacity to grant you a POA, you need to consider another option which is adult guardianship or administration.)

Your Duties as Agent

The main duty of the agent is to always act in the best interests of the principal. For the avoidance of doubt, you may want to cover the following items in the POA:

  • compensation for the services rendered;

  • voting rights;

  • right to write or alter a Will;

  • delegation to a sub-agent;

  • guardianship of someone else;

  • testimony in place of the principal.

Durable vs. Non-Durable Power of Attorney

When agreeing on a POA, you need to determine whether it will be a durable or non-durable one. A durable POA becomes effective the moment your parents sign it. It automatically gives the agent the powers conferred under the document and does not expire until your parent passes away or unless they decide to revoke the POA. (Note that in civil law countries and in certain circumstances, a POA may continue to have effects after the principal’s death).

A non-durable POA, on the other hand, has a limited purpose like a specific transaction; for example, your father wants you to oversee the sale of a property, he could grant you a non-durable POA to that effect only.

Determining which type of POA is needed depends on what the end goal is. If your parent is slowly starting to have more trouble managing their finances or their medical care, a durable POA might be the best arrangement.

Discuss the Issue With Your Parent (and Possibly Other Family Members)

Since your parent is the only person who can grant you a POA, this step is a must. You need to have a heart-to-heart conversation with your parent, explaining your concerns and pointing out that it is probably better to be proactive now than to wait and potentially lose the ability to have a say in their own affairs and well-beings later on. Be sure that your parent truly understands what signing a POA means.

Let the idea sit with your parent for a while. You should never pressure them into signing a POA, as it risks being challenged as signed under duress, thereby resulting in the document being declared void.

It can also be useful to get your siblings and other close family members involved in the early discussions, after all, the more transparent and collaborative the process is now, the less chance there will be disputes later on. Trying to keep things hidden might cause family disharmony and other problems since your siblings or other family members may question your motives rightfully if you had sought a POA without their knowledge.

Also, keep in mind that you do not necessarily have to be the one who is granted the POA. Maybe someone else, such as one of your siblings, is better suited as agent.

Considering factors like your health, geographic location, personal and religious beliefs, are you really able to take on an administrative or decision-making role for your parent if your own health is not that great, you live far away or you do not agree with the wishes that they had expressed?

Now that you have learned how and why it is important to get a POA for your parent, you can start moving forward with a plan that is in their best interests.

Writing a POA is the very first step, and it's an important one. But that's not enough. In the digital age, the next step is to store this POA online. Otherwise, what happens if nobody is able to find this POA in a timely manner? liteWill is the only registration platform that is available globally and that provides the option to store a POA online. ‘A Will that is not online is like a Will that does not exist’.

This portion of the website is for information only. The statements and opinions are the expression of their author, not of liteWill, and have not been evaluated for accuracy, completeness or changes in the law. Information contained in this article is not a substitute for tax or legal advice.

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