Should I get power of attorney?

January 18, 2013 2:42 PM

My father is hospitalized and will likely go to a long-term care facility if/when he is discharged. He has a Living Will and I am his health care surrogate, but I have reservations about getting power of attorney.

He has few assests, in fact he probably has a lot of debts. I am his only child who is involved in his life. He is estranged from my adult brother and he has siblings that live a few states away. They have all said that they are comfortable with me making decisions for him if the need should arise. He filled out paperwork for advance directives, including a living will and designating me as his health care surrogate. That gives me access to his medical records in order to assist with rehab facility and long-term care facility placement.

I have reservations about getting power of attorney because my father has not been truthful in the past and I am concerned about getting into a mess that I do not want. I know I will not be responsible for his debts. Is there any reson that I should get power of attorney if there is no estate or inheritance? Probably just a lot of bills and stuff to clean up.

posted by Ochre,Hugh to law & government (11 answers total)

Speaking from experience, you need to talk to a lawyer or an accountant, as well as someone familiar with social welfare regulations and laws in your state or province.
posted by KokuRyu at 2:47 PM on January 18 [1 favorite]

I don't know what kind of mess you're talking about, but financially it can't hurt you. We were in a similar situation when my dad was dying and it did end up being helpful as far as dealing with closing his bank accounts and that type of thing.
posted by something something at 3:08 PM on January 18 [1 favorite]

When my father was in this situation, my sister had his power of attorney. While it helped tremendously in dealing with his financial and medical arrangements, it also put her on the hook for his charges at the long term care facility because she signed the paperwork. Get a lawyer.
posted by tamitang at 3:12 PM on January 18 [1 favorite]

I found that having power of attorney made dealing with affairs much easier in the few cases I've needed to take care of business for someone with significant health problems. You'll want to check with an attorney, but my understanding is that signing on someone's behalf shouldn't make you responsible for their debts unless you specifically sign a document that passes that responsibility to you.

Even with few assets, an hour with an attorney would be worthwhile to make sure you clearly understand this situation.
posted by HuronBob at 3:27 PM on January 18

IANAL, IANYL; I speak from the perspective of one who is serving several elderly relatives as either Power of Attorney, Health Care Proxy, and / or Estate Executor (and soon to be Trustee of a Supplemental Needs Trust) (in New York State):

You need a lawyer who specializes in family law and preferably elder law. Pronto.

That having been said:

If you intend to help your father in any meaningful way other than discussing your father's health with health care providers and informing them about his preferences for, say, end of life medical care, you will need a power of attorney (POA).

Without a POA, you will not be able to interact with financial institutions, sign checks to pay bills or interact in any productive way with service vendors like long term care facilities, insurance companies, Medicare and Medicaid. If your father is unable to communicate competently with a lawyer to arrange for a POA to be drawn up with all the necessary particulars for your legal jurisdiction, you will need, with a lawyer's help, to get a court of law to appoint you as your father's legal representative (as in, as his POA).

Insofar as tamitang's comment above about a sister getting stuck with liability for nursing home fees, this is not supposed to happen. POAs are on the hook for honest, fair and good faith dealing, but they are not supposed to incur the dependent party's liabilities. But this is why you need a lawyer involved as there may be curious little wrinkles in the proceedings that vary by jurisdiction (as in, common practice and the relevant laws vary by state). For example, if, in the course of dealing with the admissions people at care facilities there is paperwork they try to foist on you that you do not understand, you MUST defer to your lawyer. Do not -- I repeat -- do not sign anything you do not fully understand.

Good luck!
posted by cool breeze at 3:30 PM on January 18 [1 favorite]

Had this type of decision last year and one of the things I learned was that POA ends with death. Therefore you should only worry about what you might need to do prior to that. After that you can decide whether to bother opening an estate. We decided not to since there were too many debts and no assets.
posted by thorny at 3:48 PM on January 18

When my father was in this situation, my sister had his power of attorney. While it helped tremendously in dealing with his financial and medical arrangements, it also put her on the hook for his charges at the long term care facility because she signed the paperwork. Get a lawyer.

A common thing: "hey, it says your name right here!" They want someone to pay the bills, and if they can guilt a dead person's relative into it, they are going to give it a go. If they were indeed signing as power of attorney for that person, they shouldn't be on the hook for any bills.

I don't know what the procedure is for signing as someone else, but I'm sure there is one. I would probably sign something like "My Name (as representative for John Q Public)" regardless, to make crystal clear that I'm not signing as me, but as that other person.
posted by gjc at 3:51 PM on January 18

If you're still in Florida, talk to your local Aging Resource Center. They offer resources for caregivers/relatives as well as the aging person themselves.
posted by SMPA at 4:03 PM on January 18

Yes, this is in Florida. I do plan on consulting a lawyer.
posted by Ochre,Hugh at 4:11 PM on January 18

Well, our situation is very recent so evidently my sister needs a lawyer too!
posted by tamitang at 4:37 PM on January 18

Do follow through with a properly qualified lawyer. A POA is a convenience - it allows you to do what you could not without one. The lawyer will tell you to always sign your name "under POA."

The person who got stuck paying the nursing home charges undoubtedly failed to do that, or gave in to pressure by the NH to sign personally.
posted by megatherium at 4:53 AM on January 19