Durable Power of Attorney Questions--Need Answers Fast

In My Humble Opinion
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Mods, please throw this into whatever you think is the most appropriate forum.

YOU ARE NOT MY LAWYER. I hereby state I will not consider any answers as being construed as legal advice. Any decisions I make based or not based on any information provided by any participants of this thread will be the sole decision of myself not based on any material I read herein. Or whatever else I need to say that no one is liable for any outcomes I decide.

My dad isn’t going to be alive much longer. He is in late stage heart failure and has taken a turn for the worse. He no longer eats, he’s shedding about a poud a day, and is so weak he can barely crawl in bed. His voice sounds like there’s just nothing left.

My mom has some form of severe memory loss. The working theory is it’s Alzheimer’s Dementia, as tests have ruled out other causes, HOWEVER she has not been fully diagnosed yet, as she has a full mental evaluation and testing in early October.

Tomorrow we are meeting to sign and notarize legal documents relating to end of life with two witnesses and a Notary Public. I believe there are some end of life care and wishes (Living Will) provided by their doctors and we will be needing to sign either a Health POA or a Durable POA. No one involved has or is talking about using an attorney. I have taken care of them for the last 15 years and this is what everyone wants. However, lacking access to an attorney, reading up on the different forms, I suddenly have some questions and tomorrow is coming up quick.

My questions are as such:

  1. Will my father retain all agency as long as he is living and mentally well, if I am DPoA?

The idea is we have to get me signed up as primary caretaker of my mother, effectively removing her rights since she is going to slide further into an incompetent legal state. But I would like for my father to retain all agency as long as he is alive or healthy enough to do so, both physically and mentally. If he becomes physically unable, I would simply be his agent on his behalf. Should his mind go or he die, I would be sole agent for both he and my mother, as she will be declining.

  1. Would a Health POA be more fitting? The optimal situation would be both my parents die in their home. However, that is going to take some serious rejiggering (this is under the assumption my father rebounds and lasts a few more years). After he goes, my mother will not and cannot be left alone, or else she will become a silver alert.

  2. Do we need to rework any of their will/Estate stuff? As it stands, they have written up their estate and I am sole executor. This was done at least 10 years back.

  3. Does my father have agency over my mother as of right now? There is of course no legal documents or legal arrangements to this effect other than being married and him being the sole provider.

  4. What am I missing and or not considering?

Thank you in advance and remember, none of you are my lawyer nor is anything you say considered “advice.”

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I am a lawyer, but the information I am going to give is very general. In most states there are separate forms for the person (usually a health care proxy) and their assets (Power of Attorney). The HCP kicks in at some defined point, usually when the person is declared incapacitated or incompetent by his/her medical provider. The POA usually is valid upon signing.

From your post, it sounds like your father still has capacity to execute documents, but that your mother lacks the capacity. If she does not have capacity, she shouldn’t be signing anything, and it’s likely that a guardianship and/or conservatorship may be necessary.

None of these documents have very much to do with your parents staying in their home. That’s more of a practical question of their abilities than your position as HCP or POA.

If your father is not your mothers HCP, he has no “agency” over her, but in a practical sense, most providers will defer to him because they know that is what she wants. Whether they would continue to do that for you is not as clear. The real issue becomes what happens when you want her to do something she doesn’t want to do, such as take medication or go into a nursing home. Then without a HCP or guardianship, it’s likely you wont be able to force the issue.

The one piece of advice I will give: see a lawyer. These are huge issues. Spending $1500-$2500 to get the right information and forms is well worth it.

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The important point too is YMMV by state. (IANAL)

My parents lived in New Jersey toward the end. When my father was incapacitated and had to go into a home, it was determined my stepmother’s dementia was too far gone, and she went into a home too.

The family member looking after them was trying to figure out how to sell their home. Apparently in NJ, if one of the home owners is not competent, the courts have to supervise every aspect of something like selling the house - all offers have to go in front of the court, who determines that this is a fair and honest market price for the home, not a sweetheart deal arranged by the guardian for their own profit. As with anything related to courts, this would delay the transaction long enough to scare off most home buyers. Plus there was the issue that after years of minimal maintenance effort, the house listed much lower than comparable houses. The in-ground oil tank just made things more difficult, since that needed to be dealt with.

The result was things were still going though the courts when my stepmother died, almost a year later.

At that point, since my father was still competent, he had no problem selling the house.

I’m not sure what medical documents are definitely necessary. This was only a few years ago, and we had to answer the question for my father when he went into surgery was “if it comes to that, how much effort to keep him alive?” if he was not conscious. My instructions (which everyone also agreed) was “no extraordinary measures”. I didn’t see the value of a few extra days with a tube down his throat or floating on drugs unconscious. I didn’t have to sign anything, which was good as I was hundreds of miles away at the start.

I suppose the important thing with medical decisions is that everyone around the patient agrees. While the courts may have the ultimate say on who calls the shots, the last thing the doctors and nurses want is to be the target in the middle of a vicious sibling squabble.

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[Moderating]
Actual, non-hypothetical requests for legal (or other professional) advice go in IMHO, as a way of reinforcing that, so far as you know, we’re all just a bunch of random folks online. Moving.

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Wanted to clarify a few points: My mother hasn’t been officially diagnosed or “declared” anything. Her memory issues are almost all related to short term, but there’s some long term stuff sneaking in there and there. She is to be fully evaluated in October, at which point I suspect she’ll be declared/diagnosed.

My dad is fairly immobile, so she drives him around everywhere (they rarely go anywhere but the doctor or the grocery pickup) and she does ok as long as he is telling her where to go. We don’t feel comfortable for her to drive or go places alone, but there’s no doctor’s restriction or anything like that. Point being she is legally her own person and is capable of making decisions, but she requires guidance.

On my dad’s side, he’s just so weak I don’t know how much longer he will last. Maybe he rebounds and there’s a few years left (I hope!) but every instinct tells me we have to act now, especially as his hospital reported today they are max full and are holding sick people in the ER because there are no rooms. We were in that ER on Monday for 13 hours…

If we have another emergency, we won’t be able to get treatment, and if the worst happens, we won’t be allowed access because of COVID.

So it’s sort of an emergency that we sign SOME paperwork tonight, especially the health care end of life decision stuff. But we all agree that my mom will need a legal agent on her behalf and we need to sign some kind of safety paperwork right now just in case.

Next week I will meet with lawyers to make sure everything is done correctly, undo what needs undone, and get everything in proper order. For right now, we just need a safety net.

TO BE CLEAR:

Everyone is acting in everyone else’s best interests here. None of this has anything to do with wills or estates, or inheritances, etc–it’s about keeping my mom legally safe and keeping anyone else from taking advantage of her after my dad isn’t around to veto bad decisions. No one is going to sell the house, it’s a family heirloom to be passed down. So there’s no real issues with, say, selling the house or other belongings. It’s more of an issue with, say, my dad passes, my mom gets conned into take out a reverse mortgage. I need the agency to say “no, that’s a terrible idea and we are not doing that” if my dad isn’t around.

I guess what I’m getting at is I want something in-hand while both he and her can agree in front of two witnesses and a notary, so we are doing that tonight in about 7 hours. Right now I am thinking HCP…

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@mjmartin please see my above information. I don’t have time to meet w a lawyer today before we sign stuff but we can next week, and since everyone is working in each other’s best interests (there’s no discord of any sort), it should be easy to undo/refile and adjust whatever documents we need to tighten up the arrangement. So I’m basically just looking for a safety-chute for right now, just in case my dad passes in the next few days…

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I am very sorry about your situation. If your mother is competent to sign documents, you should decide whether a Health Care Proxy and a Power of Attorney (or whatever they are called in your jurisdiction) both make sense. Like I said above, in most states there are separate documents for medical decisions (usually the HCP) and financial decisions (usually the POA). I can’t recommend a specific document format, but most are available online if you search: Power of Attorney, Financial, Your State. They are typically fairly straight forward documents and some states even have pre-approved forms.

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That is what I’m thinking. I will present them and let the two of them decide.

Thank you for reply, I’m kind of in an emotional tailspin with everything and I didn’t know where to reach out.

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No problem. My own parents and in-laws are getting to a similar place in life, and I know how overwhelming it all can be.
Not for today, obviously, but most areas have a Council on Aging or similar organization that provides assistance, advice and referrals. They can be hit or miss, but its definitely worth exploring when the immediate situation calms down a bit.
Best wishes to you in this complex situation.

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I would go for the full durable power of attorney. Your father will have as much agency as you, with the POA, want to give him. Rather you go ahead and get it now, before things get worse. This way you will have the ability to do whatever financially for both of your parents.

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Procedural questions: Do both the agent and the principal get notarized copies, or only one notarized copy to be kept at the principal’s aegis?

How is PoA enforced? For example, were I to call my mom’s neurologist and say “Hello I am now my mother’s MPoA moving forward, can you please add my number to her files and loop me in on all medical information?” and they just honor it? We have already filed Patient Communication Permission forms (whatever it’s called that allows me to call and get more medical information) so I don’t know if that’s a great example, but is the most likely how the PoA would be used.

Do the documents need to be filed at the courthouse or entered into public record?

I’ll present the options and have them decide, but right now both DPoA and MPoA look like what we need to do for this state.

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I would do both, for both parents since so many balls are up in the air. It is better to have a document and never need it than to need one and not have it

Just having a HC POA and a POA in hand doesn’t mean they ever have to be used.

And the local area Council On Aging is instead an excellent resource and source for referrals to elder law lawyers.

A Living Will is separate and also should be done. It is important guidance for doctors, EMTs and hospitals. A minister or pastor can sometimes be helpful with those if the elder person has a relationship with a pastor, rabbi, imam, priest. Leave a copy of the Living Will at the house for the ambulance crew. On the refrigerator is a traditional place, not filed away.

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Well, we got it done but it was a brutal night (just logistically and emotionally).
My dad lost all his Living Will documents we’ve been sitting on so I had to rush to buy some printer cartridges and print a bunch of documents out. We started out in the living room but I could tell my dad was in pain, so I asked if he could lay back in the recliner. After a bit he decided he needed to go lay in bed. We ended up doing it around his bed.

Ultimately we all agreed to both the Medical POA and Durable POA. I made it clear no one would be acting on anything unless 1. they want me to or 2. until they meet the requirements (it’s in the contract but I made SURE they understood).

I walked my mom through every single section then clarified with more common language, the asked if she understood and what she wanted. Emphatically she’d just say “you know this is what we have wanted from the start. Who else is going to take care of us?” And at every smart-mouth retort she had (my mom is a character!) such as: “I do hereby attest and swear that as per your requests we will keep you in this house as long as is physically and reasonably possible.” ‘huffs Well where ELSE would I be living?!’ “Well, mom, the reason we are signing this is so YOU will have ME to ensure you live where you want. Because without these documents, maybe (other family) comes and says where you can go. Maybe you end up in a nursing center or a memory care unit. We are doing this to ensure your wishes are carried out by me, and you know I have your best interests at heart.” She’d shape up real quick.

So we got it all done. Questions time:

  1. None of us could get through the Living Will…going over all these awful scenarios…the three choices were somewhat arcane and difficult to parse. We had already notarized the two POAs when the notary mentioned since I have both Medical and Durable/full POA, I could make those choices when the time comes instead of being handcuffed to some late night, convoluted decision. I felt like that is probably true, but at any rate, we have our safety net in place for now so this can wait until next week. Everyone agreed. I will call both of their doctors and double check but if you have anything to say about it, loved to hear it. One of the witnesses works in the VA hospital and she said DPOA would trump the living will anyway.

This one, I hope isn’t TOO big of a deal, but our poor, busy notary looks to have written my name in on every line that says “Principal.” It is my understanding I am the agent; my mom and my dad are individually the Principals.

If that is the case, all that would have to be done is my first name line through, their first name written above (since we share the last names). Can a notary fix their mistake?

The notary gave me a hung and said I was a good son (made me cry). That made the second witness cry. But at the end my dad felt so much better he had me get him half a burger and a shake. I could tell a weight is lifted off his shoulder. And after carefully explaining things well to my mom, she was in awe that I am agreeing to so much responsibility.

Sorry to drone on…what I did tonight is by far the BIGGEST, most seriously consequential thing I have ever done in my life. I didn’t know I had it in me, I didn’t know I could step up.

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You are awesome!!! (I’m not surprised you had it in you).

Don’t touch the original documents-cross names out, etc.-that may invalidate them. Ask a lawyer if they need redone, re-witnessed and re-notarized. My WAG is if corrections need made, it has to be by the ‘owner’ of the document (your mom or dad) and the change initialed, but I only have paralegal experience in my state, not yours. Ask a lawyer and do what they say. Hospitals and doctors are understandably picky about live and death documents and following them~make it foolproof.

If the notary screwed it up, s/he should come back and redo the documents for free.

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Short term, probably not something to worry about. Most providers just want something to have in their file, and frankly dont look at it too closely. Middle term, better get it fixed if it isn’t too big of a hassle. Longer term, meet with a lawyer and make sure everything is spot on, (and while there, get your own paperwork in order so your children/spouse/etc. don’t need to have to go through the same thing).

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You can go to this site to find your local Area Agency on Aging. They are free and able to advise on elder care issues as well as give you referrals for local lawyers who handle elder care issues and can advise re: needed documents for your parents’ specific locale. They will know what works there.

Plus, if you live far away from your folks, that area aging agency has handyperson/chore services, meals on wheels, a full range of support services you may come to need for your parents in future years. Your (and your patients’) tax dollars at work.

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OMG, THANK YOU. I know other people have mentioned going to my local agencies and getting more information, but you just solved a big problem with the “handy man/chore” person. We need someone to mow but typical lawn services want $40/week, and they can’t afford it, it’s a problem I need to solve next. That’s a great connection to find someone, and maybe if they need piddly stuff.

I’m not forever away but it’s over an hour trip, so it’s not exactly convenient to run over there for small stuff.

Thank you so much.

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After we got home I was talking to my fiancée about the little tinge of pride I was feeling. I said “I’m not a great person, but I’m sure trying…” and boy, am I trying.

Thank you for your kind words.

I don’t know if I’ve mentioned this, but I’m supposed to be getting married in October (so much work has been done I don’t know that we can cancel at this point)…I hugged my dad last night and said I really need him to stick around to see my wedding, but promised him if he needed to go that everything was going to be taken care of now that we have all this in place. This is a year of really big grown-uppy adulthood stuff for me…

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Not the least of which is getting married…mazel tov!!!

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Tomorrow I am taking him to see his doctor, I hope they will talk directly with me about palliative care. I really think he could benefit from a low dose thc/high dose CBD tincture or syrup, but there’s no way he’ll come on board unless his doctor is as well.

I think I forgot to ask about this one:

We stopped short of filling out the Advance Healthcare Directive because we felt like the Health Care PoA would allow me to make those decisions at the bitter end, where as filing that other form could result in an outcome different than how we feel AT THE TIME. This felt like it granted us more flexibility.