Having to manage the affairs of an incapacitated loved one can be extremely difficult. You likely have many questions and concerns about how to pay their bills, access their medical information, handle their finances, and ensure their needs are met.
Getting power of attorney set up beforehand designates you as having legal authority to make decisions on their behalf if they become unable to do so themselves. This preserves their rights and ensures you can continue acting in their best interests even when illness, injury, or declining mental capability leaves them unable to make their own choices.
What Exactly is Power of Attorney?
A power of attorney is a legal document that allows one person to make decisions for another person under certain circumstances. The person granting that authority is called the “principal,” and the person acting on their behalf is the “agent” or “attorney-in-fact.”
There are a few different types of power of attorney to be aware of:
Financial Power of Attorney
This allows the agent to handle the principal’s financial matters if they become incapacitated or otherwise unable to do so themselves. This may include paying bills, managing bank accounts, filing taxes, accessing assets, making investments, etc.
Healthcare Power of Attorney
Also called a healthcare proxy or medical power of attorney, this authorizes someone to make healthcare decisions if the principal cannot, like choosing doctors, consenting to surgeries or other treatments, approving hospice care, etc. Some states may refer to this document as an advance healthcare directive.
Limited or Specific Power of Attorney
Rather than granting broad authority, these limit the agent’s powers to certain acts like selling a home or managing a business. These terminate once the stated task is complete.
Why Get Power of Attorney for an Incapacitated Person?
The need for power of attorney often arises when someone becomes seriously ill, is badly injured, or experiences mental decline (like dementia) that leaves them unable to care for their own well-being or manage their affairs.
Suppose no power of attorney is in place. In that case, your only option may be to pursue legal guardianship or conservatorship, where the court steps in and grants decision-making authority after a lengthy process stripping that person of their rights. This can be extremely expensive, public, humiliating, and upsetting for all involved.
Setting up power of attorney while your loved one still has mental capability designates someone they know and trust to steward their needs should they become unable to do so themselves. This helps ease uncertainty and preserve their interests.
Steps for Putting Power of Attorney in Place
If facing an unexpected medical crisis or rapid mental decline, contact an estate planning attorney right away to understand your options and next steps under Florida law.
If your loved one still has the mental capability, but you want to prepare for possible incapacity down the road, follow these steps:
1. Determine What Type of Authority Is Needed
Consider your loved one’s situation and what kinds of decisions may need to be made on their behalf in the future. This will dictate what type of power of attorney makes the most sense. Both financial and medical powers can be granted to the same person if appropriate.
2. Choose Someone You Trust as an Agent
Ideally, a power of attorney agent is a competent adult who makes good decisions, is organized, and truly cares about your best interests. Family members or close friends are common choices. Consider discussing this ahead of time to confirm they understand the role and responsibility involved.
3. Complete the Proper Paperwork
Each state has its own power of attorney forms meeting specific and executed according to special requirements. Here in Florida, a valid power of attorney needs witnesses or notarization. An experienced Oviedo estate planning lawyer can make sure this critical document is tailored to your unique situation and properly filed.
4. Make it “Durable”
Special language must be included, confirming the agent’s authority remains intact if the principal loses mental capacity and becomes incapacitated. This “durable” clause is crucial as non-durable power of attorney expires once the principal can no longer make decisions on their own.
Responsibilities as Power of Attorney Agent
Once designated as a power of attorney agent for an incapacitated individual, you take on serious legal responsibilities in acting in their best interests. Let’s take a look at some of the more complex decision types you may encounter.
Making Sound Financial Choices
As financial power of attorney, you gain oversight of your loved one’s banking, investments, real estate transactions, tax filings, and credit. This requires strategic money management grounded in principles of fiduciary duty as you marshal resources for their care while preserving assets.
You have legal authority but not unlimited licenses regarding your finances. Carefully recording your activities remains important. Reach out with questions if ever unsure about appropriate steps to take.
Navigating Healthcare System
With healthcare power of attorney, figuring out medical billing, insurance, test results, doctor recommendations, and treatment options becomes far less intimidating. You can speak directly with their care providers regarding confidential health information.
Review diagnoses, weigh pros and cons of procedures, assess specialists, choose preferred facilities, approve therapy plans, access test results, transfer medical records, and handle billing issues. Just be aware some healthcare decisions still require additional approval.
Understanding Your Constraints
Despite broad authority in many areas, legal constraints on power of attorney prevent you from doing anything that contradicts your loved one’s established beliefs or clearly stated wishes while capable of making their own decisions. Furthermore, certain specific financial transactions require court approval for added oversight and accountability.
Don’t hesitate to enlist help from an estate planning lawyer if facing complex dilemmas where the right way forward seems unclear. Recognize the gravity of this honored position, caring for someone vulnerably dependent on your discernment.
Seeking Alternative Routes
While power of attorney offers a more dignified approach for surrogate decision-making, the court may determine whether formal guardianship or conservatorship makes better sense in certain complex situations. Given their circumstances, we can advise what legal course best protects your incapacitated loved one.
The probate process presents its own pros and cons when weighed against the dynamics of your unique scenario. An experienced perspective helps navigate these sensitive matters. Don’t shoulder this alone.
Call Vollrath Law to Schedule a Consultation
The experienced attorneys at Vollrath Law in Oviedo, FL provide customized estate planning, probate, family law, and real estate services to families in Seminole County and surrounding areas. Sisters Stephanie and Sharon Vollrath are longtime locals committed to serving their community.
