Do you have an elderly parent with dementia or signs of it? Seniors are at a higher risk of developing dementia than other categories, so it should not come as a surprise. However, you should prepare for the time when they are no longer able to manage their affairs and you need to assist them. You can do that by setting up a durable power of attorney.
What Is a Durable Power of Attorney?
This is a legally binding document through which an adult, in this case your parent, appoints you as their legal agent by their own free will. This formality will give you access to your parent’s affairs and assets, but also impose some restrictions.
You can gain access immediately, or only when your parent becomes incapacitated. Since your parent freely grants you the power of attorney, they can also revoke it. Although there are other alternatives out there, like guardianship, a power of attorney is easier to obtain and more convenient.
How to Set up a Power of Attorney
In order to set up a power of attorney, your parent needs to be of sound mind. They need to draft the power of attorney willingly and fully aware of the implications, without any duress or influence from you or anyone else.
Therefore, before you begin the procedures, it is important to discuss them with your parent. They need to accept the fact that, one day, they will no longer be able to make decisions and manage their assets and they need to appoint someone to do it for them.
Some elders are reluctant to the idea or do not fully understand how a power of attorney works. To help them obtain the clarifications they need and make the best decisions, you should consider scheduling a consultation with an elder law attorney.
The latter can explain everything to your parent and help them draft the document. You and your parent will then need to sign the final version of the document in front of a notary public. You will also need a witness to attest that your parent is of sound mind.
Both signatures will be authenticated by the notary public to prevent fraud. To avoid conflicts of interest, it is advisable to choose a witness who cannot benefit from the power of attorney. Since your parent’s condition may incapacitate them at any time, it is important to act fast.
If you, the witness, or the notary public have doubts regarding your parent’s mental capacity, the best person to clarify the situation is your parent’s doctor or psychologist. The latter can evaluate your parent and confirm their mental capacity.
What to Do If Your Parent Refuses or Does Not Have the Capacity to Set Up a Power of Attorney?
If your parent is already incapacitated or refuses your assistance, you cannot set up a power of attorney. Trying to convince a reluctant parent to grant you power of attorney would qualify as influence and justify the invalidation of the document by a judge.
The only solution you have left is to file a guardianship petition with the court. There will be a hearing of which you will have to notify your parent, other family members, and any applicable agencies. You will have to prove to the court that your parent is incapacitated and you qualify to act as their guardian.
Depending on your parent’s level of incapacitation, the court will give you full (guardianship) or partial authority (conservatorship) to handle their affairs. It helps to have a care plan for your parent and witnesses to confirm your capacity to assist them. Any conflicts of interest could influence the decision of the judge.
Since guardianship petitions take time and effort to be resolved, it is best to benefit from the assistance of an elder care lawyer. The latter can handle all procedures and help you secure a favorable verdict with minimum effort.
At JacksonWhite Attorneys at Law, we are a team of Elder Law attorneys, benefit processors, and social workers dedicated to help Arizona elders and their loved ones benefit from the care and financial support they need.
Liz S. Coyle is the Director of Client Services for JacksonWhite Attorneys at Law. She also serves as a paralegal for the Family Law Department. She is responsible for internal and external communications for the firm.