Welcome back to Part #2 of our conversation about Powers of Attorney (POAs). In the first part of this blog, we talked about how to start exercising your rights as POA if your parent’s health has started to decline.
But what happens if your parent didn’t name a Power of Attorney while they were still healthy?
Today, we’re going to focus on what to do if your parent starts to deteriorate but they do not have a Continuing Power of Attorney for Property or Power of Attorney for Personal Care. This situation is a tough one to navigate, and the best course of action is going to vary a lot from person to person, situation to situation.
Below, I outline a hypothetical scenario where you may need to intervene in your parent’s decision-making but do not have a POA to do so.
A reminder: for the purposes of this blog, I will use the terms “parent” and “child.” However, this how-to guide is applicable to anyone who is named as POA for any other person. This could be your parent, an aunt/uncle, a grandparent, a sibling, or a friend. I will also reference “mother” and “father,” but appreciate that this obviously can apply to same-sex relationships as well.
What to do when you have no POA
Imagine this scenario: Your father died a few years ago, and unfortunately, your mother has been on a steady decline ever since. She never had a POA for either personal care or property.
Recently, you and your brother have started to worry about your mother’s ability to care for herself and manage her finances. You both work full time, and you’re each supporting your own families already; providing the level of assistance your mother needs on top of your existing responsibilities would simply be too much. But it’s clear that she needs some kind of support. What can you do?
Banking and finances
Banks will not give you access to your mother’s accounts unless you have either a POA for Property or your mother put you on the account as a signatory. If neither of those things happened, your choices are limited, and likely you will need to apply for Guardianship of Property.
Guardianship of Property gives you powers similar to that of a POA, but to obtain guardianship you must go through the Superior Court of Justice and retain the services of a lawyer to prepare all of the necessary paperwork for you. (And yes, there is also such a thing as Guardianship for Personal Care.)
The court may order you to do a passing of accounts. This means a formal accounting of all of the money going in and out of your mother’s accounts. (And yes, that’s a job for another lawyer and accountant.) The Public Guardian and Trustee’s office will always need to be served with any of the documents that you submit to the court.
You can choose to apply on your own or with your brother. If you apply on your own, you should obtain written consent from your brother. The consent will show the court that you have a good relationship with your brother, that you plan to be transparent with him about your mother’s care and assets, and that there will be no arguments moving forward.
Guardianship for Property means that your mother no longer has any say in how her finances are handled, whether her house is sold or rented, whether investments are moved around to new accounts, whether funds are disbursed to loved ones prior to her passing, etc. The same goes for Guardianship of Personal Care.
In other words, if you become her Guardian of Personal Care, your mother will no longer have a say in where she lives, how her nutrition and well-being are handled, what activities she participates in, who her doctors are, what course of treatment she follows, etc.
Some of you may be thinking that this is excessive and that you won’t require this sort of power just yet. However, without a POA in your pocket, you may find you have to go down this route sooner, rather than later, in order to properly help your mother. This is why POAs are so important: they help you avoid having to choose the “nuclear option” in order to give your older relatives the support they need.
If your elderly parents are still lucid and healthy, I can’t stress enough how important it is for them to get their POAs drafted. This option is infinitely preferable to you needing to apply for Guardianship, in a fit of desperation to make sure they’re cared for.
Unfortunately, it’s all too common for families to miss (or inadvertently ignore) signs of cognitive decline in their elders. That’s why youshouldn’t wait for signs of trouble to emerge to start thinking about these things. As with so many things, when it comes to Aging & End of Life Planning, an ounce of prevention is worth a pound of cure.