You’re not the boss of me

Did you know that in some places you can’t pay your mother’s electricity bill without a Power of Attorney?  It happened to me.

And, you can’t make a deposit into your dad’s checking account without one?  Not a withdrawal, a DEPOSIT.

My sister walked into the small town bank where our parents had banked for over thirty years.  All the bank associates greeted her by name, asked about her family, inquired about our parents’ health.   Getting down to business, she attempted to made a cash deposit into the account which was held by Mom and Dad.  The teller asked her if she knew the account number and was she authorized to conduct transactions.  My sister did not know the account number and asked the teller to just look them up and deposit the cash.   She was informed that unless she had a POA or was listed on the account the deposit could not be completed.

POA and Competency

All the confusion surrounding a Power of Attorney stems from tales of elder people being swindled by people holding a POA.

General Durable POA:  It covers a wide range of issues you may need to manage such as selling real estate, or buying a car, and managing everyday bills and financial transactions.  It allows your agent, among many things, to make calls to collect and gather information.  It enables your agent to speak for you, to assist you in person, and to sign for you when needed. You can also designate an alternate agent in the event the first person is unable to perform.

But it does get a bit more complicated.  I strongly recommend you have an attorney draw up your POAs.  Yup, you may want more than one.  Consider a Medical/Healthcare POA and a Financial POA.  Don’t slap your forehead.  These can be combined if you have an agent willing to serve in both areas.

Medical/Healthcare POA:  Perhaps you have a doctor or nurse or other medical expert in the family that you feel would make the better decisions.  Here is a list of some of the decisions they may have to make:

  • Medical care including what hospital, clinic, pharmacy, or primary care doctor will be indicated for you
  • Treatments such as surgery, rehab, physical therapy, psychiatric, dietary, wound care, prescription medications
  • Where you will live such as residential long-term care, assisted living, memory care, and nursing homes
  • What you eat and who bathes you

Financial POA:  This POA may have a broad spectrum of responsibility and would be required to assist the Medical POA if a separate agent is assigned to each POA.  This is a list of financial responsibilities that may be included:

  • Have access to financial accounts to assure you have your medical, housing, utility, transportation, insurance, and other bills paid
  • Arrange to have all taxes files and paid including income and real estate taxes
  • Investment accounts should be monitored and sound decisions made on your behalf.  This may require working with other financial advisors
  • Collect your debts and manage any property you may own
  • Oversee applications for Medicaide, supplemental insurance, veterans’ benefits, etc.
  • Oversee support of your family members such as spousal care, dependent children or parents,

You do NOT lose your right to make your own decisions.  You have the same decision-making powers you had before you signed it.

Remember I mentioned paying my parents’ electrical bill.  I had to send a copy of the POA to the electric company for their records. It was only then that I could get the balance due, get information on power usage, transfer the bill into my niece’s name when she moved in to housesit for the winter, and ultimately close the account when the house sold.

Springing Power POA:  This particular POA only kicks in after a doctor determines that you are not able to make decisions for yourself whether it’s regarding your finances, assets, or care. It is recommended that you include the criteria for deciding who is involved in declaring that you are mentally incompetent. Choose your POA agent carefully because of the amount of responsibility and power he/she will hold for your future. Personally, I would not recommend this POA.  The determination of incompetency can be very controversial. Family members may well disagree and cause emotional and financial distress.

Fiduciary Responsibility of Your Agent:  Your choice of POA agent is crucial for this one.  Under state laws the agent cannot take your money for themselves.  No fancy vacations on your dollar.  This is known as fiduciary responsibility  It may be necessary to have two agents serve at the same time.   This has a pro and a con depending on the family.  Pro: It keeps one person from skimming from your accounts to their advantage.  Con:  These two may not agree what is in your best interests.  This can inhibit crucial decision making whether it’s financial or not.

POA and Medicare Eligibility

I strongly advise you to use an attorney to create this clause.    Under state laws your agent cannot give away your assets to other family members to make you eligible for Medicare.  You must have a properly written paragraph that would legally allow disbursement to the family to facilitate access to Medicare coverage for a nursing home or assisted living. Medicaire is very good at finding assets being hidden.   Do NOT use free forms from the internet.   You need the expertise of legal counsel for the protection of your assets.  It won’t be terribly expensive.

Do NOT send the original copy of a Power of Attorney to anyone.  Not even if they promise to send it back.

The way around this is to take the original to a bank and ask for an officer who is a Notary.  The Notary will copy the original after verifying your identification and then notarize the copy.  That notarized copy can be sent in place of the original.