Most people are familiar with powers of attorney and how they work at a basic level. However, these documents can have very important consequences to your overall estate plan and should be thoughtfully drafted.
Let’s begin with defining the different roles in a power of attorney. The Principal is the person creating the power of attorney, giving someone else authority over their financial decisions. The Agent is the person being given the authority. Now we can discuss how powers of attorney work.
Powers of attorney may be broad or narrow in scope. For instance, the Principal could give the Agent powers to manage all of the Principal’s assets or limited to only address real property. Powers can also be limited by time, so that the Agent only has the power to manage the Principal’s assets while the Principal is away. However the Principal wants to limit the Agent’s powers, is fine; the Principal need only clearly state those limits in the document.
It is important to understand, however, that the Agent’s powers only exist as long as the Principal has the legal capacity to exercise those powers themselves. If something physically happens to the Principal and they are not able to manage their own finances (due to a coma, say), the Agent loses their powers to act on the Principal’s behalf as well.
This does not work so well in the world of estate planning, where we typically do not want our Agents to have any powers unless we are incapacitated. This is easily addressed by making the power of attorney “durable,” which allow it to continue to function even when the Principal lacks capacity. In order for a power of attorney to be “durable,” it must include specific language stating this intent. In the world of estate planning, our powers of attorney are typically “durable” as that is how we best serve our clients.
Another choice in powers of attorney is whether it is effective immediately or “springing.” A power of attorney that is effective immediately gives the Agent the powers in the document immediately upon the Principal signing it. Even though the Principal is fully capable of managing their own finances, the Agent has full authority alongside the Principal. Typically, when we are naming an Agent to manage our finances for us, we do not want them to have any power untilwe are incapacitated. To effectuate that, I usually advise a “springing” power of attorney – one which only comes into effect upon the Principal’s incapacity. In this situation, it is important to have a good clear definition of incapacity in the document itself in order to avoid court for the determination.
A well-crafted Durable and Springing Power of Attorney often works best to satisfy my clients’ desire to have someone named to manage their assets only if they are unable to manage them alone. Working with an experience estate planning attorney will ensure that your documents are drafted in a way most beneficial to your situation.
After focusing the past few weeks on dementia and the elderly, I thought it made might be a good idea to talk about the importance of estate planning for the younger among us. I often find that those in their 20s, 30s, and even 40s don’t think about estate planning as something they need to address until much later in life. This couldn’t be further from the truth – the fact is, everyone should have an estate plan!
This article 2017 article from USA Today addresses all the reasons why: Millenials, Don’t Forget Estate Planning
If you have any questions, please email me at email@example.com – I am happy to continue the conversation with you!
The signs of a good nursing home include treating the underlying medical problems, relieving pain, and doing everything possible for the residents to feel comfortable and at peace. Psychoactive drugs should always be the last resort for treating the symptoms of dementia and there are many steps a care facility can take before resorting to medication.
Enlightened care providers are increasingly turning to “comfort care” to enhance the quality of life for their residents. This approach, as its name suggests, focuses on keeping the residents comfortable using a nurturing, individualized approach looking at the emotional, social, and spiritual needs of their residents, as well as the medical ones. The goal is to keep residents comfortable, thereby avoiding unnecessary drugs. This can be done through a variety of means:
- knowing the residents well enough that basic needs are never a major issue, and needs can be anticipated
- embracing a philosophy of individualized care
- adjusting the manner and pace of interacting with the residents to be more suitable for the needs of those living with dementia
- recognizing and treating pain aggressively
- treating family and friends as the true partners in care that they are
The simplest of issues may trigger conflict: an incompatible roommate, room temperature issues, unenjoyable music choices, a loud television. Someone living with dementia may not be able to effectively communicate what is bothering them and it is up to the care providers to be patient and understanding in discovering the root of the issue. Common symptoms of dementia, such as restlessness, pacing, and repeated questions, should be both anticipated and accepted.
Individualized care and more attention are some of the best substitutes for drugs. As your loved one’s advocate, insist on a customized care plan which takes into account personal sleeping and eating schedules, bathing methods, and other services which will keep your loved one happy and comfortable. A facility which takes the time to really learn about their residents, their history and life’s journey, will be more likely to meet these needs effectlively.
Nursing homes can also stop unnecessary drugging by improving staff training on how to respond to symptoms of dementia. Talk to the facility where your loved one lives and ask if they have the local Alzheimer’s Association chapter conduct training for their staff. There are also certified coaches in Teepa Snow’s “Positive Approach to Care” who can provide valuable training for both independent and facility-based care partners. If on-going training is not part of their protocol, urge them to make it so.
It takes a village to be a care partner to someone living with dementia. Finding a residential facility able and willing to truly be part of that village will help ensure there is no unnecessary medicating and that your loved one will have the best life possible until the very end.
For further reading:
Encouraging Comfort Care: A Guide for Families of People with Dementia Living in Care Facilities