Issues for elders: How to obtain a power of attorney for a parent

Jill Burzynski

Adult children often call lawyers asking them to prepare durable power of attorneys for parents. This question inevitably leads to further conversation.

The threshold question is, "Why are your parents not calling themselves?" If an attorney is going to be able to do legal documents, the clients need to be able to express what they want and understand the documents that they asked to be prepared.

If the child is calling because the parents lack the cognitive ability to express their desire or to understand the implications of the documents, no attorney is going to be able to ethically proceed with preparing a power of attorney.

Sometimes the children are calling because the parents are unwilling to seek legal and long term planning advice. Again, if that is the case, an attorney will not be able to comply with the requests by the child.

If either of the above situations is occurring, an attorney may be able to assist the child, but the answer may not a power of attorney. If the parents have lost legal capacity, a guardianship may be necessary. Guardianship is an involved and expensive legal proceeding which should not be used if there are other less restrictive options.

So before advising a family to seek guardianship, an attorney should analyze how assets are held, and what problems are being encountered. If the problems can be solved in other ways, guardianship is not an appropriate solution.

Sometimes the family members call when they do not agree with the elder’s choice of fiduciary named in existing documents. The attorney should then determine whether there are acts of exploitation or self-dealing taking place that are legally actionable. If there is a misuse of trust or if there is a criminal exploitation occurring, appropriate civil or criminal action should be pursued. If, however, it is merely a child second-guessing the parents’ decision of fiduciary, no legal action should be pursued.

Sometimes at this juncture, families attempt "DIY" remedies by finding a power of attorney form online or copying another family member's power of attorney. No legal requirement exists that requires attorneys to be involved with the preparation of a durable power of attorney. However, in 2011, the Florida Legislature significantly changed the power of attorney statute, making a Florida durable power of attorney a very complex document. Many powers have to be specifically enumerated and initialed to be operative. Using a family member’s document as a template may cause the document to be unenforceable if it is not compliant with current law.

Many families often start thinking about powers of attorney for their parents when they begin to notice changes in health and cognitive functioning. The elders may have a window of time to put legal documents in place. Further, this is the time to analyze not only the sufficiency of the legal documents, but also a realistic plan of care going forward. Estate planning documents that were done for other situations may not include sufficient flexibility to engage in asset protection planning that should be considered if long term care needs are foreseeable.

Twenty-four-hour care in the home costs between $180,000-$200,000 per year in Collier County. If the family cannot afford to pay this cost from income, then planning for this type of care long-term will cause a depletion of assets that could mean total impoverishment. While 24-hour care is seldom needed initially, planning must include consideration of the disease trajectories and comorbidities. If home care is not feasible with the assets available, other options have to be considered.

The use of government benefits including VA Aid and Attendance and Medicaid can significantly help to prevent impoverishment. Asset protection planning requires appropriate legal authority which must be built into the legal documents, including the durable power of attorney. If a DIY power of attorney was used while the elder had capacity and that DIY proves insufficient when government benefits are needed, the family will have made a costly mistake.

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Issues for elders: How to obtain a power of attorney for a parent