Beyond the Basics: What You Need to Know About Power of Attorney

You’ve probably heard the term Power of Attorney (PoA) at least a few times. It’s one of the most common aspects of advance care planning and a powerful one at that. Indeed, the combination of Power of Attorney and a Living Will is almost essential for promoting your loved one’s wishes, especially when they can’t speak for themselves.

Essentially, the Power of Attorney paperwork allows you to act as your loved one’s advocate in healthcare, finances, and/or legal matters. You’re considered their proxy or agent, and are able to make decisions on their behalf. Exactly what this looks like varies depending on the type of PoA and the details inside it.

But, while PoA is common, it is also somewhat complex. It’s crucial to understand what is expected of you, the powers you will have, and the limits to your powers.

If possible, it’s best to learn as much as you can before becoming a proxy for your loved one. This way you can be fully prepared. You might even choose to turn down the role if the responsibilities are too much.

Some Definitions

First, let’s get some definitions out of the way.

Power of Attorney (PoA). This is the legal document that provides authority for another person to act.

Principal. The person who created the Power of Attorney, who is granting authority to another. For example, this might be your aging parent or a spouse.

Agent/Attorney-in-Fact/Proxy/Healthcare Proxy. These terms all refer to the individual granted authority under the PoA document. So, if your parent named in in their PoA paperwork, you become their agent.

You might also hear people talk about a person with Power of Attorney or perhaps calling someone a Power of Attorney. Yet, that’s not quite right. The term Power of Attorney actually only applies to the paperwork, not to the person named within it.

Types of Power of Attorney

The Power of Attorney documentation defines the power the agent has, including when they’re able to act and how far their authority extends. There are a few aspects to consider here.

Scope

A General Power of Attorney is a broad document that allows the agent to act for the principal in most legal and financial matters. This is helpful for situations where the agent needs to make comprehensive decisions, like managing all of a senior’s finances and even selling the family home.

In contrast, a Limited Power of Attorney (or Special Power of Attorney) only covers specific tasks and decisions, based on what is outlined in the document. For example, the agent might be able to pay bills and buy food using the senior’s bank account, but have no authority to sell assets.

Then there’s the Healthcare Power of Attorney (or Medical Power of Attorney). This is a type of Limited Power of Attorney that specifically focuses on healthcare decisions.

You won’t see healthcare authority included in a General Power of Attorney, as the role is too specialized.

Durability

A non-durable PoA is only active as long as the person can make decisions for themselves. If they are in a coma, are considered mentally incapacitated, or have their decision-making ability compromised in another way – the PoA is no longer relevant.

In contrast, a durable PoA remains active even when the primary is incapacitated, making it powerful for healthcare decisions. Healthcare PoAs are normally designed to be durable, but it’s still important to double check your paperwork and be certain.

Springing Power of Attorney

A Springing Power of Attorney is an interesting variation. This type of PoA only comes into effect under specific situations (based on what is written in the paperwork).

Normally, this would be set up so that the PoA becomes active when the individual becomes unable to make decisions for themselves. This is a powerful idea for seniors who don’t want to give up control.

Still, the approach isn’t perfect.

For the PoA to work well, it needs to come into effect as soon as the senior is incapacitated.

But, in some situations, determining incapacity can be difficult and time-consuming. This is particularly true for incapacity due to cognitive decline from dementia.

Someone with dementia may not even understand they have the condition or may think their cognition is better than it is. As a result, they might fight any attempts to trigger the springing PoA. Plus, dementia symptoms don’t follow a predictable and consistent pattern. Not only are there good days and bad ones, but the senior may appear more competent with some people (often known as showtiming).

Even if the incapacity is undeniable, like the senior is in a coma, there may still be legal steps. For example, you may still need a doctor to provide an appropriate letter or something similar.

Such patterns may create a gap in time where the senior isn’t capable of making rational decisions, yet is still legally considered competent. This delay in activating the PoA is a serious issue, especially when decisions need to be made quickly.

Who Becomes the Power of Attorney Agent?

Seniors often choose people they are close to as their agent, such as an adult child or a spouse.

However, they could choose someone outside the family as well, such as a close friend or a minister. Choosing someone outside the family could be a way of shielding adult children from practical and emotional challenges. Alternatively, the senior may simply feel closer to and better understood by the person they have chosen.

The senior may also have multiple PoAs, like one for healthcare and another for finances. If so, the PoAs could have the same or different agents.

Having different agents could reduce workload and allow the principal to choose people based on their strengths. However, communication between the agents may be needed for areas where their roles overlap.

How to Be Effective as a PoA Agent

Being an agent is more complex than it sounds. Before we talk about the specific complexities, let’s look at how you can be effective as an agent.

Research as Much as You Can

Make sure you fully understand the role you’re getting into, including all the legal and personal expectations. Take your time with this, as there’s a lot to consider and laws vary from state to state.  

Talking with a lawyer or another expert is crucial for understanding some aspects, such as the types of records you’ll need to keep and when the PoA alone won’t be enough. Lawyers are even more important if there are complexities in your loved one’s situation or if there’s a risk of family conflict.

Look at caregiver forums too, particularly threads from caregivers acting as PoA agents. Doing shows the day-to-day realities of being a PoA, including some of the challenges that aren’t often discussed.

Have In-Depth Conversations

It’s also crucial to talk to the senior at length about their expectations and hopes. This includes talking about their wishes and values around end-of-life, what they want you to do, and whether there are any hidden surprises (like medical issues you don’t know about).

It’s best to have multiple conversations here, so you can get a full sense of what to expect.

There are a few areas of complexity here:

• The senior might hold back some information or avoid some topics, especially if they’re embarrassed.
• The senior may not be explicit in some areas if they think the information is already obvious. But, what’s obvious to one person may not be obvious to another.
• Relationship dynamics can be relevant too, influencing what each person says and the way they view the other person.
• External factors may influence how each person feels and what they say. For example, if one person is tired or stressed, they may not be taking in everything that’s said. 

Because of these complexities, it can take a while to truly understand what the senior needs and what the agent role will require. Often, it’s best to have multiple gentle conversations, rather than a single intense one. 

Consider Whether You Can Do the Role Well

Finally, don’t take the role agent role because it’s expected. Take the time to think about whether you would be able to do it well.

Do you have enough time and energy? What about your emotional capacity?

How well do your parent’s wishes match your own values? If there’s a big difference here, being your parent’s advocate could be much harder.  

If you say you can’t be a PoA agent early, the senior has time to find someone else and have all the crucial conversations. That’s much better than you trying the role and doing it poorly or needing to drop out partway through.

Complexities and Challenges of Being a PoA Agent

So then, let’s look at the specifics of being someone’s PoA agent, including some topics that mightn’t be obvious at first.

You Need To Keep Careful Records

Agents are required to keep careful records, especially if they hold a financial PoA. This can include needing to record every financial transaction you make, while also storing all receipts, letters, and other types of paperwork.

You’ll likely need some type of filing system to stay organized here. Doing so makes it easier to quickly find the information and reduces frustration.

It’s often wise to keep records of everything you can think of, even if the information seems irrelevant. You never know what you’re going to need.

The Role Can Be Intense

Being a Power of Attorney agent can involve a considerable amount of work, including planning, paperwork, record keeping, and plenty of appointments. This is particularly true if you’re managing the senior’s finances and making healthcare decisions.

The various steps all take time, which may then mean you have less time and energy left to connect with your loved one.

There’s also a considerable emotional toll. Not only are you dealing with the emotions associated with an upcoming death, but the decisions you’re making will also have a considerable impact. That’s not even considering all the emotions tied up with family drama.

You Need to Keep Things Private

Agents will often need to keep things confidential, particularly sensitive details about a senior’s finances, health, and personal life. This can mean only sharing information with people who need to know, such as healthcare staff.

If you’re unsure about when to keep things confidential, it’s best to consult an attorney. They can inform you of the laws in your area, along with the implications of sharing confidential information.

The Situation May Spark Family Conflict

Aging and end-of-life are hotbeds for family conflict.

There are many reasons for this, including the fact that family members are often physically separated, may have different values, carry their own childhood stories and/or traumas, and may not have all the facts.

Designating one family member as PoA can make such conflicts worse, especially if other family members feel offended about being left out.

I’ve seen this issue highlighted many times on aging forums. Sometimes it is the PoA agent who is posting, often frustrated by family members who want a blow-by-blow account of every decision or who insist the agent does things differently.

Other times, a non-agent family member may be posting. For example, one member’s thread talked about being concerned that the person with financial PoA responsibilities wasn’t telling the family what was being done with the senior’s money. Yet, agents aren’t obliged to fill family members in. Doing so could sometimes even break confidentiality.

Such issues aren’t surprising. It’s easy to think the worst of a sibling that you barely see, where most of the information about your parent comes from them rather than from the parent.

It Can Spark Conflict with the Senior Too

Even though the senior designated you as their agent, your role can easily lead to issues and resentment. This is most common if you’re practicing some agent duties while the senior is still competent or if they are dealing with symptoms of dementia.

After all, having someone conduct your affairs can feel like a considerable loss of autonomy. This gets even worse if the agent wants to do things in a different way to the senior or sees their capacity in a different light.

What happens if the agent and senior differ in their approaches and values? For example, the senior might follow their intuition and make decisions based on instinct, while the PoA agent could be a focused planner. It’s easy to see how that difference would lead to countless issues.

There Are Limits to Your Authority

Even with a broad PoA, there are limits to your power. For example, an agent might need to obtain court approval to make some major changes, such as selling real estate. There are also separate authorizations required for Medicare and for managing veteran’s benefits.

Some institutions may have specific policies around PoAs, like requiring extra verification before the agent can act on the principal’s behalf.

Such situations can be frustrating, especially if urgent action is required. However, the limits to agent authority aren’t all bad, as they’re there to help protect the senior. 

Some of these limits mean that you will need to prove that you are a PoA agent before you can act on your parent’s behalf. As such, it’s crucial to get all the paperwork in place at the beginning.

You Need to Follow the Advance Directive

As a healthcare proxy, your role is to advocate for your loved one and interpret their advance directive when needed. You don’t have the power to contradict the instructions in the advance directive, especially as that is a legal document.

Because of this, it’s important to understand your loved one’s wishes before agreeing to be their healthcare proxy. As you talk to them, think about whether you’d be comfortable following their wishes.

This issue is most noticeable when it comes to values about quality of life versus length of life.

Some seniors may be strongly focused on the quality of their final days. This could include wanting to refuse surgery or other life-prolonging treatments if such approaches risk significantly decreasing quality of life.

Such an approach could be very difficult for a family member who believes in prolonging life for as long as possible.

Also, if you’re struggling to let go of a loved one and accept their upcoming death, you may find it difficult to make decisions that match their wishes.

It’s Wise to Have a Contingency Plan

Despite your best intentions, you mightn’t be able to continue with the agent role for as long as your loved one hopes for. Potential issues include burnout, a crisis in your immediate family, not having enough time, or a health issue of your own.

As with caregiving, you’re not obliged to remain as your loved one’s designated agent, especially if doing so is causing considerable strain and suffering.

However, you shouldn’t leave them stranded either. The best approach is to have a succession plan, so that there is already someone prepared, willing, and able to take over the role if you can no longer do so. Ideally, the succession plan should be set up by the senior when they’re competent. This way whoever takes over is informed and will follow their wishes.

Remember, we can’t always keep the promises that we make. Life is full of twists and turns, some of which mean we can no longer provide the support we hoped to.

There Are Location-Specific Variations

Your physical location will influence some of the laws surrounding Power of Attorney, advance directives, and other aspects of end-of-life planning.

This is why it’s so important to talk to a legal representative and find out exactly what to expect. This should be done by both the principal and the prospective agent, so everyone is on the same page about what is likely to happen next.

Legal advice is important during the process as well – as some legal complexities aren’t obvious at all.

Frequently Asked Questions

Do I Get Paid as an Agent?

Being a PoA agent is generally an unpaid role. However, the agent might be paid if the PoA paperwork includes details on a fee.

If there is no information on the PoA paperwork itself, the potential for compensation is determined by state laws. In some cases, payment is possible even if the PoA paperwork doesn’t explicitly talk about compensation.

Agents need to be cautious here, as they must still act in the principal’s best interests and watch out for a conflict of interest. It’s best to seek legal advice before making any decisions. This way you can protect yourself and ensure there are no misunderstandings.

Can the Principal Revoke a Power of Attorney?

Principals have the power to revoke their PoA at any time and for any reason. This could include choosing a different relative following a fight or making a new romantic partner their PoA over an adult child.

That said, a senior can only revoke their PoA if they’re considered competent to do so. This means a senior in the middle or late stages of dementia can’t choose a different agent (even if they threaten to do so!).

Does the Agent Need to Discuss Matters with Family Members?

The amount of discussion will be influenced by family dynamics and specifics of the PoA paperwork. But, in general, the agent is responsible for the principal’s best interest – not to other family members.

Some topics may even need to be kept private to respect the senior’s confidentiality.

That said, it’s often helpful to keep family members in the loop as much as you can. Doing so helps them understand what’s going on and reduces the risk of conflict.

If your family is prone to conflict, be especially careful with your documentation. Make sure you record everything and also make notes about why you made particular decisions. Such details could be important if there are any accusations later. 

Final Thoughts

Being someone’s agent is clearly a complex role. Yet, it’s also crucial. You become a voice for your loved one, advocating for their needs in the hectic healthcare system.

Without someone in this role, your loved one’s healthcare directives could easily get missed, leading to care they would never have chosen for themselves.