How to Obtain Power of Attorney
According to Alzheimer’s Disease International, there are about 10 million new cases of dementia each year. In addition, the Cleveland Clinic states that countless people fall into comas each year throughout the United States. Both of these issues represent mental incapacitation, which affects both patients and their family members. One of the most challenging aspects of mental incapacitation is the fact that patients can no longer make decisions for themselves. “Power of attorney” is an estate planning tool that can address this challenge. Families who are pursuing power of attorney may want to discuss their specific goals with experienced Florida estate planning attorneys. Loughlin Law, P.A. is available for more in-depth discussions on this subject, so consider calling (561) 677-8384 to schedule a consultation.
Consider Whether You Actually Need Power of Attorney
The first step is to consider whether power of attorney is appropriate for the specific situation at hand. Powers of attorney may allow family members to act on behalf of incapacitated loved ones – but only in specific situations. If a loved one is already mentally incapacitated, it is impossible to pursue power of attorney. This is because in order for this estate planning tool to function, the principal must consent and sign the document. In this context, the “principal” is the person who delegates authority to another person. This other person is called the “agent.” The Florida Bar states that the principal and two witnesses must sign the power of attorney with help from a notary.
If the individual in question is already mentally incapacitated, then it makes more sense to pursue guardianship instead. In addition to the lack of incapacitation, the principal must be “competent” in order to sign the power of attorney. Even if they are not fully incapacitated, they may struggle to understand the legal process behind this estate planning document. If they do not understand what they are signing, then the document cannot be valid or legally binding. Unlike a power of attorney, a guardianship allows concerned family members to act on behalf of someone who is already incapacitated. This might be someone suffering from dementia, or someone in a vegetative/comatose state. In certain cases, Florida courts may award guardianship over a “ward” who is not fully incapacitated. This might be someone who is struggling with a serious psychological breakdown or a severe substance abuse problem.
The Importance of Acting Quickly
The fact that a principal cannot sign a power of attorney after becoming incapacitated or incompetent highlights the need to act quickly. The most organized families create powers of attorney long before any hint of incompetence or incapacitation appears. These estate planning tools are “proactive” in nature – not “reactive.” Assess whether there is a family history of issues like dementia or Alzheimer’s. Consider consulting with Loughlin Law, P.A. at the first sign of cognitive decline. This might include problems forming sentences, forgetting names, difficulty recognizing faces, and other early signs of dementia.
Have a Conversation With the Family
Remember, the principal must consent to the power of attorney. Families may struggle to obtain their consent, as many individuals do not feel comfortable about giving decision-making authority to others. Some may even feel insulted by the mere suggestion that they are experiencing the early stages of cognitive decline. Others may worry about agents abusing their power for financial gain.
Although these concerns may be frustrating for family members, they are valid and legitimate. In order to address them in a respectful manner, it may be worth bringing the entire family together for a group discussion. Each family member can express their feelings about why a power of attorney may be necessary, and the principal may also voice their fears. A simple discussion can lead to a sense of mutual understanding, and it may make the principal more likely to sign the document.
Avoid Pre-Printed “DIY” Power of Attorney Forms
In the modern era, the internet is filled with all kinds of templates and pre-printed “DIY” legal forms. It may be tempting to simply print out one of these forms and use it when pursuing a power of attorney. However, the Florida Bar warns against this practice – highlighting the importance of tailoring these documents to the specific circumstances of each family. A pre-printed form could be legally invalid when it matters most.
Choose the Right Type of Power of Attorney
Families should know that powers of attorney come in different forms. Limited powers of attorney and durable powers of attorney are distinct, and it is important to choose the most appropriate option. For families concerned about dementia and other forms of mental incapacitation, a durable power of attorney is the most logical choice. Unlike a limited power of attorney, a durable power of attorney maintains decision-making authority if the principal becomes incapacitated. On the other hand, a limited power of attorney becomes invalid if the principal becomes incapacitated.
There is also a distinction between medical powers of attorney and financial powers of attorney. As their names imply, one gives agents power over medical decisions, while the other involves financial decisions. If families want the power to make all legal, financial, and medical decisions, they may consider a “general power of attorney.” The ability to make both financial and medical decisions could be crucial. For example, a family may need to sell the home of the principal in order to pay for their expensive medical treatments.
Store the Document Safely
Last but not least, it is important to store the document in a safe location. In an ideal world, the family will never actually need this document – and the principal will live out their life without ever becoming mentally incapacitated. If the document is required, however, it should be located and executed as quickly as possible. Consider storing the document in a safe or in the office of the attorney who drafted it.
Learn More by Contacting Loughlin Law, P.A.
Power of attorney is a common estate planning tool for many families. That being said, each family is unique. Online research may be able to provide basic guidance, but it cannot take into account the specific goals and priorities of each family. In contrast, a consultation with an experienced estate planning attorney in Florida may give families the opportunity to ask questions and receive personalized guidance. Consider taking the next step beyond online research by scheduling a consultation with Loughlin Law, P.A. Call (561) 677-8384 today to learn more.
