Legal Matters: Power of Attorney

Editor's Note: These answers present general information in response to brief factual scenarios and do not provide legal advice or substitute for the advice of an attorney. Every person's circumstances are different, and laws vary from state to state. If you need legal advice or other expert assistance, seek the services of an attorney or other competent professional.

My elderly mother's kidneys are failing, and I am trying to organize her medical and financial needs through this life-ending process. What can you tell me about power of attorney documents — do we need them, and how do they work?

Powers of attorney are something that Mom needs to knowingly and willingly give. It is important that she create these documents while she is well enough to understand what she is doing. A power of attorney document is a very helpful legal tool to manage the affairs of a family member with a serious, progressive illness. There are two kinds and, ideally, you should have both. A health care power of attorney, or health care advance directive,, communicates the treatment wishes of your loved one in the face of a crisis. Free advance directive forms and guidance on having a family discussion about the decisions are available on AARP's website or the American Bar Association's website. For more information, see the AARP guide to advance directives. For a financial power of attorney, many states have forms written into their statutes that can be used, but there are many pitfalls to completing this on your own. Everyone's situation is unique, so a financial power of attorney document is best drafted with the help of an attorney. For more, see the AARP article on financial power of attorney.

"A power of attorney document is a very helpful legal tool to manage the affairs of a family member with a serious, progressive illness." — Image Source/Alamy

I'm concerned about my 80-year-old mother, who is paralyzed from a stroke. She lives with my brother, and I'm worried he might abuse his influence as my mother's cognitive abilities worsen. I want an independent guardian to be given durable power of attorney. I do not have the funds to pay for legal representation in this matter. Any suggestions on how to make sure her interests are protected?

A guardian is only possible if your mother meets the legal requirements for incapacity under state law. Generally, physical disabilities are not enough. Typically, the court needs to hear evidence that she lacks the capacity to make and communicate decisions. The process requires the filing of a petition in court and can be financially costly and complex, depending on where you live. If you have some basis to suspect abuse or neglect, call Adult Protective Services in your area. If your brother is approachable, propose the hiring of an independent geriatric care manager to help evaluate your mother's functioning and provide guidance on how best to meet her needs. If Mom's mind is still strong, she may want to name an agent in a power of attorney, with careful thought about who the most responsible agent would be.

I am a caregiver for my adult son, who has been diagnosed with a mental illness. I need to know my rights so I can help him with doctor appointments and legal issues that were left unresolved before his illness struck. Also, how do I become his guardian or get a power of attorney?

Your son retains the right to control his own life, for better or worse, unless he is held under a mental commitment order (which will normally be of a short duration) or is found to be incapacitated under state guardianship law. Mental illness is so variable over time that a long-term guardianship is rare. If he is willing, your son can sign a health care power of attorney to enable you to make health decisions for him when he is unable to do so. He can also sign a financial power of attorney to authorize you to handle his finances. These documents can also be revoked by him. The help of a lawyer to draft these is advisable because mental health issues pose complex challenges.

What form do I need to fill out to give my son and daughter the right to obtain my medical information and direct my medical care?

You need to name them as your health care agents under a health care power of attorney, which is also commonly called a health care advance directive. This kind of document also enables you to spell out any guidance you want to give them in making health decisions for you. The preferred approach is to authorize one of them as your primary agent and the other as the backup — in order to avoid a deadlock if they disagree. However, you can name them to act together as coagents if you choose. As your health care agent, an individual, by law, has the same access to your medical information as you would have under a federal law called the Privacy Act. Go to AARP or the American Bar Association's website for free forms and guidance. The important part of completing an advance directive is the discussion between the individual and the family about one's goals of care, priorities in the face of illness, values and wishes.

Charles P. Sabatino, J.D., is the director of the American Bar Association's Commission on Law and Aging.