Helping a Loved One Make a Power of Attorney

By Shae Irving, Nolo

Those who may soon be unable to make their own decisions should prepare powers of attorney.

Many people find themselves in the painful position of seeing a family member or close friend lose the ability to make sound medical and financial decisions. In addition to the grief of watching a loved one’s condition deteriorate, a caretaker’s situation can be made more difficult if the person in need of help denies — or is not aware of — worsening physical or mental health.

Understanding the Documents You Need

If the person you’re caring for is still of sound mind (a little forgetful is okay, as long as they can understand the plans you suggest) and receptive to the idea of setting out medical wishes and naming someone to handle financial matters, that will make things much easier. You can help the person prepare and finalize both medical and financial powers of attorney. These documents will name someone — perhaps you — to oversee medical care and handle financial matters. Here’s a brief overview of both documents.

Medical power of attorney. This document — often called a “durable power of attorney for health care” — names a trusted person to make health care decisions for someone who can no longer do so, or simply does not wish to. Depending on the person's state of residence, the health care representative may be called an agent, attorney-in-fact, health care proxy, health care surrogate, or something similar.

The health care agent works with doctors and other health care providers to make sure the person who makes the document gets the kind of care they wish to receive. When arranging care, the agent is legally bound to follow the document maker’s treatment preferences to the extent that he or she knows what they are.

To make health care wishes clear, the person you’re caring for can use a second type of health care document — often called a living will or a health care declaration — to provide written health care instructions to the agent and health care providers.

To make it simple, some states combine a durable power of attorney for health care and living will into a single form, commonly called an advance health care directive.

Financial power of attorney. The financial power of attorney you’ll want to help your loved one prepare is called a “durable power of attorney for finances.” This document will let your family member or friend give someone else full authority to handle financial matters. The appointed person is usually called the “agent” or “attorney-in-fact,” though he or she most definitely doesn’t have to be an attorney.

The agent can handle mundane tasks such as sorting through mail and depositing Social Security checks, as well as more complex jobs like watching over retirement accounts and other investments, or filing tax returns. The agent doesn’t have to be a financial expert; just someone who is completely trustworthy and has a good dose of common sense. If necessary, the agent can hire professionals to help out with complicated tasks.

If Your Loved One Resists Your Help

If you think someone who needs help will resist your efforts, you need to carefully consider the way you approach the subject.

Explain why powers of attorney are important. For some stubborn folks, it may be enough to explain why planning is important. Some people may be moved by a request to make powers of attorney because it will relieve anxiety and pressure for you and others who care about them, even if they don’t much care what happens or who makes decisions for them.

Others may be more inclined to make health care and financial documents if they understand that doing so is the best way for them to stay in control of their lives, because whomever they name must follow their instructions in every way possible. (If don’t name their own representatives in powers of attorney, a court may appoint someone to act without their input.)

Of course, when you talk with anyone who’s struggling with increasing frailty, you will have to tread gently around issues of deteriorating mental or physical abilities, perhaps underscoring that planning is a good thing for everybody to do, in case help is necessary someday.

Don’t force it. All that said, it’s just as important to remember that legally you can’t —and of course, you shouldn’t — force someone to follow a certain course just because you think it’s best. If you strong-arm or coerce someone into making powers of attorney, and the documents are later challenged in court, you could find yourself in a lot of legal trouble. The same goes for faking signatures on any legal documents. Don’t do it. If your loved one doesn’t want to cooperate and you eventually have to ask a court for control over his or her affairs, that may be difficult, but it’s much better than being charged with fraud or forgery.

If It’s Too Late to Plan

If a family member is already incapacitated, you’ll need to ask a court to name a guardian or conservator to watch over his or her affairs. A court will usually name a spouse or other very close family member to this position, taking into account any evidence of what the incapacitated person would have wanted and other information about what’s in his or her best interest.