Adapted from my article in Attorney at Law Magazine – Middle Tennessee Edition – http://www.attorneyatlawmagazine.com/tennessee/powers-of-attorney/
Volume 2 No. 4, Page 15 http://digitaleditions.walsworthprintgroup.com/publication/?i=333972
Powers of Attorney
Powers of attorney give the holder ability to clean out bank accounts, hide resources, withhold needed treatment, and extend suffering where permission to cease treatment and comfort measures are refused.
Not everyone is qualified to act as an attorney. If they struggle with their finances and bounce a lot of checks with their own money, there is reason to believe they might do the same with the client’s money. If they have obtained a series of “loans” from mom and dad without ever bothering to pay those loans back, handing them the keys to the accounts with a power of attorney is probably a bad idea.
A popular tool to ensure no funny business is requiring one or more doctors to certify lack of capacity before the power of attorney comes into effect. The tool does nothing to prevent problems after the person giving it is declared to lack capacity. It also ignores the problems that will arise when the person giving it probably lacks capacity, but believes they are just fine.
Checking to ensure there is adequate capacity is a keystone to a successful power of attorney. An optimal way to ensure capacity is to have the physician certify capacity within a few days of the signing of the documents. Witnesses who know the person giving power of attorney and have no stake in the outcome and are trusted by a majority of the family are a good idea where capacity is in question.
Powers of attorney are wonderful tools for clients and family. They can ensure that a trusted family member is handling business just as well as, or better than the client. They can lift a burden from clients who worry what might happen if they can’t make decisions for themselves.
A power of attorney can help prevent conservatorships and their high costs. In the event a conservatorship becomes necessary, the preferred conservator can even be named in the power of attorney. The judge is required to pay attention to the nomination and probably appreciates it.
Even the best, most artfully crafted, power of attorney is useless unless it is accessible when needed. I strongly urge clients to take copies of their health care powers of attorney to all of their doctors and hospitals near them to put the documents in the electronic medical records. I also urge clients to take their general powers of attorney to their banks and financial institutions. Banks have been known to refuse to recognize powers of attorney for reasons that defy reason and logic. Best try to fix the issue before it is too late.