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A POA and Planning While You Can

Have you heard the story about the frog that was swimming happily in a pot of cold water, not noticing as the water was gradually warming to the point that the frog eventually was cooked in boiling water?  I cannot vouch for whether that is true from my experience as a cook.  But the story is at least useful as a metaphor to create an image of how gradual change can be unnoticed until a moment of crisis occurs.

Maybe it seems like only yesterday that your kid was asking you for the keys to the family car, and to spot him $20.  If you are blessed to live long enough, your kid might one day encourage you to give up your car keys permanently and allow her to handle your checkbook and manage your finances.  

Whether that is a good thing or a bad thing might depend upon your outlook.   Is a glass half full or full empty?  As we age into a stage where we could be less able to manage tasks such as driving a car or managing a checkbook, do we get more satisfaction from arguing and resisting help that is offered, or learning to appreciate things we have overlooked in the past?

Can we identify a backyard bird by sight or by song?  Can we play a musical instrument or carry our share of the tune as a member of a church choir?  Can we sit through a grandchild’s performance in a school activity and follow the action with only one bathroom break?  Can we realize that “what really matters” is subject to change?

Life can be sweet without retaining control over all of the details.   For all of us, changes in our way of life have been happening at warp speed.  The freedom to drive anywhere to get what we need has been replaced by Amazon, which delivers what we need within a period of days, and Uber, which helps us to get what we need within hours.

If you are reading this and have not appointed someone with a power of attorney (POA) to act as your agent, the question is “why not?”   Do you believe that you are immune from a life changing event, such as a stroke or a traumatic brain injury that suddenly, without warning, could leave you incapacitated?

Do you have such disrespect and distrust for family members and friends that you would rather throw yourself at the mercy of the court to appoint a paid, professional guardian for you when you need one?

Do you refuse to be scared into action that seems premature because, unlike the frog, you are confident that you will act when you eventually sense a need to do so?

The real irony in all of this is that the most effective way to be a wise control freak is to plan ahead and create foundational legal documents before a crisis occurs.  That way you can explore options, think about your choices for agents, and make sure that, if and when you need to have an agent, the person who you believe to be your best option is prepared to help you.

A POA agent can do many things.  Generally, I recommend to our older clients that the best practice is to appoint an agent that can be trusted immediately to take any action that my client can take.   That certainly is a lot of trust and a lot of power.

However, a POA agent cannot legally take away your car keys or take your checkbook from you.   A good POA agent might seek to do those things and be skillful enough to persuade you to agree.  But if you stubbornly resist, then it will be up to PennDOT to take your license, hopefully before you cause a serious accident.  And only a judge has the legal authority to declare you to be an incapacitated person who is unable to manage your own affairs.

Before you deteriorate to that point, if you have a POA agent, a lot of good and helpful things can occur.  Here is a sample of questions that we get, and nearly each one is most appropriately answered if the parent has appointed a POA:

  • It is no longer safe to leave my parent alone at home, but one of my siblings is willing to quit her job to stay with my parent and provide care.   How can she get paid for helping my parent?
  • I live with my parent.  Will I lose my home if my parent goes to a nursing home?
  • My parent is going to move into my home.  Do we need some type of legal arrangement?
  • Can I sign checks and important papers for my parent?
  • How can my siblings and I protect our personal finances from the cost of our parent’s care?
  • Is my parent obligated to pay for the care of a spouse who is not my parent?
  • My siblings and I do not agree about the type of care our parent requires.  Who gets to make the final decisions?
  • I discovered that my sibling took money from my parent, but my parent was not aware of it.  What should I do?
  • My father started to go downhill quickly after my mother died and is now in a care facility.  We cannot afford to pay the upkeep of the home, and the insurance company says we need to sell the home or put a new roof on it to keep it insured.  What can we do?

Each of the above questions is an interesting one.   We probably have written an article in the past about at least a few of them and can address them in future articles.  Perhaps your family’s question is a bit different.

Good planning for long-term care starts with creation of foundational legal documents including a last will and testament, advance directive for health care with a living will, and a durable financial power of attorney.   Isn’t it time for you to get started?

Dave Nesbit, Attorney