Durable Power of Attorney and More

Bill_2001 · June 19

This may be one of the most important topics on this forum, so I will keep it brief.

Disclaimer: This is not legal advice; please seek counsel from a certified elder law attorney.

There is a big difference between Power of Attorney (POA) and Durable Power of Attorney (DPOA). The documents you want are certainly the Durable Power of Attorney.

Power of Attorney is in force when you ARE capable of managing your own affairs, but you would like someone else to be able to step in as well. For example, you may give your adult child Power of Attorney to handle business for you while you are simply out of town.

Durable Power of Attorney continues to be in force when you are NOT capable of managing your own affairs. For example, you may give your adult child Durable Power of Attorney to handle business for you while you are out of town, or in case you are incapacitated. Memory loss such as dementia qualifies as “incapacitated.”

You should seek Durable Power of Attorney over your spouse while he or she is still legally able to sign the document – earlier is even better.

For yourself, be sure to grant Durable Power of Attorney to someone OTHER than your spouse with dementia.

Here is the document checklist I used. I hope you find it helpful.

You will need TWO of each of these: One for yourself granting power to someone OTHER than your spouse, and one for your spouse granting YOU the power.

1-Durable Power of Attorney

2-Durable Power of Attorney for Health Care

3-Living Will

4-HIPPA Authorization

5-Last Will and Testament

My mission is to help make this journey just a bit easier for caregivers.

Love Bill_2001

blacksparky · June 19

Thanks Bill, just wondering if we need a living will. We have everything else you mentioned and also have a revocable trust.

Bill_2001 · June 19

Hi blacksparky,

I would consult a certified elder law attorney. I did not go the Trust route, but all situations are different. A Living Will basically states which life-extending measures you are willing to receive, if any. People have many different opinions on this issue, hence the need to state your exact wishes.

sandwichone123 · June 19

There is another POA called a "springing" DPOA. Avoid this if possible, as it is sometimes difficult to use due to the difficulty of obtaining the documentation required to "spring" it. This type of POA is durable, but requires proof that the person is incapacitated. In some cases, families have had difficulty getting doctors to certify their loved one's incapacity, so they are unable to use the POA.

Dio · June 19

Thanks, Bill. To add to your insightful info…

For some reason, Title companies are very strict with even a DPOA. So if anyone is planning to sell property, a DPOA may not be enough and require more proof of dementia from doctor. And some banking institutes require their own POA form(s), which is a pain as well.

Bill_2001 · June 19

Thank you Dio. This is very helpful. I do have letters from two doctors certifying my wife's dementia. I have had to use them along with the DPOA for Health Care and HIPPA Authorization.

If you are good with technology, I advise keeping copies of all documents on Google Drive (or similar), so that you can access them with your mobile phone. This comes is very handy when conducting any business on behalf of your loved one, only to get stopped cold by a request for documents.

"Boom- here you go (from my phone)."

Bill_2001

Timmyd · June 19

I would recommend all financial accounts include a beneficiary or POD (payable upon death) designation.

I have quite a bit of experience with the probate process, both with and without a will.

My advice would be to set up as many of the assets as you can to transfer to the heir without having to probate the will. I think of the will as a backstop. Ideally all your assets are set up to transfer to their heir without having to probate the will, but if something gets missed or slips through cracks, then the will can be probated.

cdgbdr · June 19

I have a CELA and have those documents. So far, I have been able to do everything needed. I had a medical assistant ask me for a letter invoking my POA and I told her I didn't need it. She told me financial institutions may need it. Then she said "he looks alright" I replied, "but he's not". This was at the geriatric practice! Holy cow, don't make this harder than it needs to be!

SDianeL · June 20

https://alzconnected.org/discussion/73324/durable-power-of-attorney-and-more

thank you.

Elizabeth607 · June 20

https://alzconnected.org/discussion/comment/246125#Comment_246125

It is also called a Directive to Physicians. If you have a terminal and or Irreversible condition, do you want medical treatment to keep you alive at all costs or do you want to be kept comfortable and die gently.

psg712 · June 20

My mom had DPOA established before her dementia became evident. The only issues I had with using it came from the financial companies who held her investments. A couple of them required that I take documents to a notary and swear that the DPOA was still in force and had not been amended in the ten years since mom had executed it. Good grief. But I jumped through their hoop and got the notary's seal on it.

I do keep the DPOA document on my phone. It's been useful for everything from medical visits to proving to an overzealous customer service rep that I have authority to cancel an old book club membership for mom.

When it comes to a living will ... from my experience in health care, I can say that a LW is most useful for helping family members with differing opinions focus on what the PWD's actual wishes were when he/she was clearer of mind. Health care teams will almost always defer to the wishes of the family over a living will. That's why having a document for health care proxy helps the medical team to know which family member has the legal standing to speak for the PWD in medical decisions.

Bunny whisperer · June 21

Bill,

Thank you so much for sharing. I have a DPOA over my DH, but so many places want their own filled out...banks, medical, insurance..etc. So I got those as well. Is an advanced directive the same as a living will? My DH filled one out years ago and its on file at the hospital and his doctors offices…they always ask when we go to either one if its still in effect and I tell them yes it is.

weareallunique · June 22

https://alzconnected.org/discussion/comment/246136#Comment_246136

Before making these type of changes a consult with a elder law and /or cpa is recommended— second families, step-up in value tax considerations are important etc . Rarely are there do overs after death.

White Crane · June 22

thank you, Bill. I just want to add that Social Security will not accept a durable power of attorney. I had to jump through a lot of hoops just to change my husband‘s address with Social Security.

ronda b · June 22

What does social security accept?

weareallunique · June 23

https://alzconnected.org/discussion/comment/246367#Comment_246367

official

https://www.ssa.gov/payee/faqrep.htm?tl=10

private firm that explains a bit more

https://meldfinancial.com/social-security-medicare/does-power-attorney-impact-social-security-medicare/

Also, it is very prudent to have a bank account that is "safe" for automatic deposits - you don't want to risk it being hacked via a check etc. because it is a hassle to redirect the deposits . So having one account for incoming and at least one for outgoing funds is a good idea.

White Crane · June 23

the document you posted was very informative. Thank you. In our case, I had to call the office and make an appointment for a phone interview. The interview lasted close to a half hour and was fairly in depth. At the end of the interview I was able to become my husband’s representative payee. now I have to keep a detailed record of his Social Security payments and what the money is used for.

ronda b · June 23

https://alzconnected.org/discussion/comment/246375#Comment_246375

That site really gives alot of good info.

Elizabeth607 · June 23

I thank all for their input on this thread. The experiences shared by others help us that haven't been exposed to certain situations (social security and Medicare) - yet, become better prepared.

So in addition to:

1-Durable Power of Attorney

2-Durable Power of Attorney for Health Care

3-Living Will

4-HIPPA Authorization

5-Last Will and Testament

You will also need:

6- Social Security - Representative Payee

7-Medicare - Authorized Representative

8-Check with financial institutions to see if they will honor DPOA or if you need to complete theirs.

9- Check to see if beneficiary designation, transfer on death /payable on death transactions will cause unexpected tax issues.

We did meet with an Elder Law Attorney and have 1-5 complete along with a transfer on death deed for the house, have paperwork in order for transfer of vehicle if needed, and all financial instruments with a designated beneficiary or payable on death. I found out about the Medicare Authorized Representative on this site some time ago and the Social Security Representative today from this thread. I have already selected a MC facility for when/if that time comes.

Like others, I worry about what will happen to my husband if I die before him. Every update or change I have made is to put this wheel in motion and added a secondary and third agent to all documents for just in case. I hope these "agents" (his family) show up for him when/if I am gone - because they haven't while I am here.😔

Please add any other documentation that you think may need to be implemented.

Thank you.

weareallunique · June 24

re : Elizabeth607's "Like others, I worry about what will happen to my husband if I die before him. Every update or change I have made is to put this wheel in motion and added a secondary and third agent to all documents for just in case. I hope these "agents" (his family) show up for him when/if I am gone - because they haven't while I am here.😔"

You can talk to your elder law attorney about naming a private professional conservator/guardian as a back up. If your family choices get ill, move around the world , have triplets ,etc. they may have been able to be an executor but not the on going monitoring of care for a PWD.

The professionals aren't inexpensive but they know how to manage and be responsible for care . Many times they are court appointed if a person has no family, but assets . I went to the courthouse and read some files for the conservators I was considering. Gave me a good idea of what they do and how they report.

Your lawyer can explain more .

Elizabeth607 · June 24

https://alzconnected.org/discussion/comment/246477#Comment_246477

Thank you.

Durable Power of Attorney and More

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