What legal docs should I have my pal fill out?

November 27, 2024 1:25 PM

Someone I know, in their late 50s, lives a very rough life due to lifelong mental illness. They're in an okay place now and will be visiting me shortly, though decades of experience mean I know it's inevitable that they'll take a downturn at some point. While they're here & in a good frame of mind, I was thinking of encouraging/assisting them in filling out some basic legal documents like a living will. What other docs should I encourage? Where can I access them? This person lives in Massachusetts.

Obviously I won't force them to do anything, but it would be handy for me to be able to access parts of their life if/when they have a breakdown. I already assist them with everything I can do remotely, and I am the only person they trust to assist them. FWIW, they have basically zero money and no material assets beyond their meager personal possessions. However, in past cases of breakdowns, for example, they've lost all their personal possessions because I could not reach them inside a hospital and their landlord just trashed everything when they failed to pay rent.

What docs would allow me to help my friend more?

posted by BlahLaLa to Grab Bag (8 answers total)

Best answer: - A Health Care Power for Attorney (HCPOA)would allow you to make medical decisions on their behalf if they were not capable for making decisions for themselves. This would also give health care professionals permission to discuss his care with you. Each state usually has a standard form, often it is part of an Advanced Health Directive that also allows a signer to express preferences for his care as well as specifying their HCPOA. using the downloadable version (ideally from the state where it is most likely to be needed) is best.

- A Financial Power for Attorney is a bigger move. It would authorize you to act on their behalf and for their benefit for a wide range of financial and legal actions. (It can be written broadly or narrowly). There could be some risk from you if you think someone might get upset that you weren't spending their money appropriately or for their benefit. This is one where you would normally want to get a lawyer involved, both to make sure it works properly and protects both of you but there are probably cheap versions if you are comfortable you are taking on some risk. It doesn't take away your friend's ability to act on his own behalf, but it also, simultaneously, gives you the power to act for him within the scope defined in the contract. Obviously he should only to this to the extend that he trusts you act on his behalf as he would do himself - a broad POA gives you the power to really mess up his life.

- A Wellness Recovery Action Plan is a form that would help your friend describe what he would like to have happen the next time he has an episode. It is not a legal document but it gives you a way to talk with him about next steps when things start to go south (might or not might actually work) as well as giving you more confident about how to make the best decision under the HCPOA.
posted by metahawk at 2:49 PM on November 27

Consider whether you really want this responsibility before taking on any powers of attorney. Having someone's POA is short of an obligation to exercise it in theory, but perhaps not in practice. If they become incompetent and everyone involved in their care turns to you.

And once you do exercise any powers of attorney, especially with regard to their finances or property, then constructive obligations may attach from there forward.
posted by snuffleupagus at 5:11 PM on November 27

Response by poster: For various reasons, the responsibility is going to fall to me already. So I’m wondering if any of these actions now can actually make it easier for me at some date in the future. (The only other people my friend has in their life is their elderly parents who won’t be around for all that much longer.)
posted by BlahLaLa at 6:42 PM on November 27

Yes, they will make it easier (or, possible) in generic sense under the law of no particular state. But I really would suggest you talk to a lawyer in your jurisdiction, given what it sounds like you anticipate. It's worth a few hours of time to tailor form documents to your particular situation.

I would not execute generic POAs found online or from Nolo Press etc. if you can avoid it. And as a part of this you should talk to someone in a position to advise you about the prospect that this person may at some point require a conservatorship. Which is much more than a POA.

Though it would afford you less control, it would be reasonable (and maybe better) for the person in question to be the client, and receive and pay for the consult. If they're up to it.
posted by snuffleupagus at 6:48 PM on November 27 [2 favorites]

It would be best if your friend could get their own legal advice before signing anything. And for the documents to be drafted in a way that will accomplish their goals. Yes, it will cost money, but this is a serious decision for both of you.
posted by lookoutbelow at 8:19 PM on November 27 [1 favorite]

Yes, there are likely documents that would make it easier for you to e.g. reach them in hospital. No, you should not be the one deciding which version of such documents will best meet you friend's needs and wishes, and how to fill those out. This is "each of you needs a lawyer" territory if at all possible. If that's not feasible, okay, but then you really, really shouldn't rush through this. If that's the case then I would use his visit only as a chance to have big picture discussions about what he does, and doesn't, want to authorize you to do on his behalf. And then go and do research with that in mind and bring him back some options to discuss in the future, after the visit, without time pressure to hurry up and do it in this trip, and with an understanding of what those options mean for you too.
posted by Stacey at 9:34 PM on November 27

There are (generally speaking) two different ways to do a financial power of attorney. One type would give you the powers immediately, the other type, generally referred to as a “springing” PoA, only goes in to effect under certain conditions - often only if a medical professional determines that your friend is mentally incompetent or incapacitated. In some ways it is simpler to have the PoA form that is in effect now, because then you don’t need to prove anything to make a decision if it becomes necessary. However, if your friend is at all hesitant to sign, they may be more comfortable signing a springing type form.

In terms of medical care, if there is a specific hospital system and/or doctor’s office your friend typically uses I would contact the hospital/office e to ask if they have their own forms for both medical decision making and release of information. A general healthcare power of attorney will also work, and you may want to do that as well, but often there’s a pretty simple way for your friend to sign something that at least will allow the medical staff to share information with you.
posted by maleficent at 8:25 AM on November 28 [1 favorite]

Response by poster: Alas, when this person arrived they were not in as healthy a state as I would have hoped. I won't go into details except to say I was unable to execute this plan. I hope to be able to do it in the future.
posted by BlahLaLa at 9:20 AM on December 9