“Ask A Lawyer” – Power of Attorney

Q. My mother is 85 and quite sharp for her age. My siblings and I have tried to discuss with her the wisdom of having a Power of Attorney. She does not wish to talk about this and we are concerned that she may eventually need one. What happens if a Power of Attorney is required and she does not have one?

A. It is not uncommon for aging parents to resist the preparation of a Power of Attorney because they often associate this with losing control of their independence. As you know this is not the case, however, it is often difficult to convey this to the aging parent. It is almost assured that at one point or another a Power of Attorney will be required for hospital or nursing home care or some other need. When (and if) this occurs a Power of Attorney, with health care provisions, will be required. In the absence of a Power of Attorney you and your siblings would be required to make an Application to the Courts for the appointment of a Committee (guardian), in order to make decisions on behalf of your mother. The legal cost of a Power of Attorney is only a small fraction of the legal cost for a Court appointed Committee and the benefits to your mother are essentially the same. In addition to cost, the time required to have a Committee appointed can be rather lengthy which can cause a great inconvenience for your family since it is usually being sought at a time when decisions need to be made regarding a person’s personal care and finances.

Perhaps the most significant advantage of a Power of Attorney is that your mother can determine for herself who is to make her personal and financial decisions as opposed to having a Court decide which family member(s) will make those decisions.

It may be important to your mother to know that she does not have to give the Power of Attorney to her Attorney until it is required. It has been our experience that most Donors wish to leave their Power of Attorney in safe keeping with us, together with a Letter of Direction that we release it to their Attorney upon their (the Donor’s) direction, or upon receiving medical advice stating that the Donor is unable to give this direction.

We would recommend that you discuss this matter with your mother again, or suggest that she discuss it with us.




September 2018

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