Getting the Right Power of Attorney

We never know what life has in store for us. We are always at risk of becoming temporarily or permanently incapacitated due to accident, illness, or aging.

A power of attorney allows you (the “principal”) to give someone else (your “agent”) the authority to act and make decisions for you in you are ever unable to act on your own behalf.

If you do ever lose the ability to make your own decisions, the power of attorney may become the most important legal document you ever signed. Through advance preparation you can help ensure that the right decisions will be made for you by the right people at the right time and that your goals and values will always be respected.

Powers of attorney can be created to deal with personal and health care decisions, or financial matters, or both. This article will focus on financial powers of attorney. How can you ensure that this most important document will best meet your needs and goals if your agent is ever required to act?

Try to avoid relying on one-size-fits-all documents or forms that limit your agent’s authority to the default powers provided in a state law. Standard form powers of attorney may omit functions that could be essential to allow your agent to meet your particular circumstances. Your document needs to be prepared with your individual situation and goals in mind.

For those of us who are at risk of needing long term care (that’s pretty much everyone) a financial power of attorney can be the key that opens the door to effective asset protection planning. An inadequate power of attorney can close the door on protecting our assets for ourselves and our loved ones.

Unfortunately many documents, even when prepared by a lawyer, fail to address the critical issue of paying for long term care. The cost of long term care is not covered by Medicare and most private insurance policies. Asset protection planning may be required to protect what you own from the cost of care. This is a complicated area of law and your power of attorney should be prepared by a lawyer who understands it and is an expert in vital benefit programs like Medicaid and VA pension.

If protecting your home and other assets from the cost of long term care is one of your goals you should (1) find a lawyer who is an expert in this kind of planning, (2) discuss your wishes with the lawyer – don’t hesitate to bring the matter up yourself if the lawyer fails to do so, and (3) make sure your power of attorney specifies the conditions, if any, under which your agent will be authorized to transfer your assets in order to preserve them. The absence of appropriate authorizations in the document can seriously jeopardize your long term financial security and that of your spouse and family.

On the other hand, a power of attorney can be used as a tool to take financial advantage of you or to thwart your desired estate plan. Your power of attorney document should be tailored to meet your goals, given your unique circumstances, concerns, and needs, while protecting you from the potential for abuse. This is not a simple document.

Here are some items for you to think about and discuss with your lawyer. 

• Consider options that can limit the potential for exploitation by your agent - e.g., limiting your agent's power to make gifts, naming co-agents who must agree, requiring reporting by your agent to a third party;

• Don’t rely on a “standard” power of attorney form you get from the internet or from a lawyer who is not an expert in long term care. Your power of attorney should be drafted by an expert lawyer who tailors the document to your particular circumstances, needs, and goals.

• Have an in-depth discussion with your lawyer about whether to give your agent the authority to make gifts on your behalf. Failure to have the appropriate gifting provisions in the document is one of the most frequently encountered problems with powers of attorney. This failure can delay your qualification for Medicaid and VA benefits, result in the need for guardianship or other court involvement, and create the potential for hard feelings and even litigation between your family members.

• Consider whether to waive some of the duties the law may place on your trusted family members. For example, you may or may not want your spouse or child burdened with the record-keeping requirements of state law. The record-keeping requirements, prohibitions against self-dealing and commingling funds, and certain other duties imposed on your agent can be waived when the power of attorney is created, but the waiver must be explicit.

• Where appropriate, consider protecting yourself from the inappropriate use of any power you give your agent to make gifts on your behalf. You can build in protections against abuse of gifting powers by:
  • requiring that all gifts be approved by persons other than the agent;
  • limiting the persons to whom gifts can be made (e.g., allowing gifts to be made only to your spouse);
  • requiring that gifts be made in equal amounts to all your children;
  • requiring that the agent report all gifts made by the agent (e.g., to another family member).

Talk to your children and any other family members who may someday be involved in your care. Prepare them for the day that you may need to rely on your designated agent. Tell them about the preparations you have made. Ask them to communicate with and support your agent and each other. Encourage them to hire expert help if they need to do so.

The laws governing powers of attorney have changed a lot in recent years. And your circumstances may also have changed. So it's smart to have your power of attorney document reviewed every few years by a lawyer who is an expert on the intricacies of this most important planning tool.

Here are some things for you to consider if you are named as someone’s financial agent.

1. Seriously consider whether or not to accept the responsibilities of agency before commencing down this perilous road. In Pennsylvania and many other states the agent is required to sign a written agreement to serve before they are legally entitled to act. This spotlights the seriousness of this undertaking.

2. Seek expert help and become educated about your responsibilities. Legal and accounting assistance may be advisable as you begin to assume your duties.

3. Assume that you will someday be called to account for all of your actions as agent. Be prepared from the moment you begin. Keep receipts, checks, and other records.

Something Beautiful…..

By Josephine Reviello*

I recently attended an all-day Alzheimer's Association Spring Conference and Music Therapy was one of the topics. I was amazed at the video presentation of an elderly man stricken with Alzheimer's disease, in the later stages, who came alive when he heard a familiar tune that he used to love in his young day! It was so heartwarming to see him go from a zombie-like state to all smiles and bouncing with energy to the beat of the music! And he actually sang every word in perfect tune! The musical notes of that piece of music were able to break through all of that darkness and confusion and find a way into that one part of his brain that was still alive and intact! Those notes triggered something…something beautiful! This wasn’t something I could to keep in - I had to try it. 

I have a client who is residing in a nursing home with advanced stages of a form of dementia. We'll call her “Jane”. Prior to my next routine visit with Jane, I asked her husband if it was ok if I brought in some music for her to listen to. I asked what kind of music she liked - he told me classic country - the oldies but goodies.  Although the activity department of the nursing home does a good job of providing music for the residents to listen to, using a pair of headphones drowns out the surrounding noises and it becomes more personal.

Now, usually, when I visit Jane she pleasantly smiles at me and talks to me with words that don’t always make sense and in sentences that don't flow together in a sensible way. But I’m just glad when she appears to be happy – maybe she thinks I’m someone else – someone she likes or loves or used to enjoy being around. So, I gladly play the part – I smile and laugh with her, I nod my head in agreement, I widen my eyes in surprise….and we have a good time. I know Jane is in there somewhere and if there was any way to reach her and connect with her I wanted to find it.

I downloaded an app on my cell phone that played some classic country music and purchased a pair of headphones for a few dollars. I met with Jane at the nursing home – she was sitting in her wheelchair, in the dining room with the other dementia residents waiting for the dinner trays to arrive. There were 3-4 residents seated at each table and each table had something that they could fiddle with such as stuffed animals, baby dolls, crayons and paper, wash cloths to fold, etc. The room was full of residents with dementia, chaotic as usual, with those residents who are ambulatory wandering around table to table, moving furniture, taking someone’s bib, causing another resident to get upset, mumbling, humming, babbling, alarms sounding when someone tried getting out of their seat, etc. And only one staff person in the room to manage all of these people. Unfortunately, this just seems to be the norm when waiting for dinner trays, not only in this facility but in many others.

Jane greeted me with a smile as usual. I validated her conversations with me and then put the headphones on and played some classic country music. I had to keep my eye on the app on my cell phone to make sure it was playing because I couldn’t hear from the headphones.  She stopped fiddling with the stuffed teddy bear on the table and put her hands on top of the headphones resting on her ears. She was still for a few seconds, listening. Then she fiddled with the teddy bear on the table again. Then she started to hum a little. Later she clapped a little. She seemed to be in and out of focus on the song – perhaps I didn’t find a song that was her favorite. But after a while she started singing “You Are My Sunshine”.  Now, I think this song is far from being considered as a classic country song. But, I’m convinced that the music she heard had triggered something in her brain to make her want to sing that song. She sang almost the entire song with all the words right in tune and smiling the entire time. She would look at me and smile and sing this song. I tried to sing along with her but unfortunately, I don’t know all of the words to this song. But she was content just singing it to me.

I reported this experience to Jane’s daughter, who told me that her mother used to sing the song “You Are My Sunshine” to her when she was a little girl!  I was so pleasantly surprised I wanted to cry! I was so happy to have made such a connection with Jane – a memory that brought her back to happy moments with her children and she was able to share that with me. The notes of the music she heard triggered something……..something beautiful!

*Josephine Reviello is a Case Manager and Director of Office Operations at the law firm Marshall, Parker and Weber.