Powers of Attorney: Crucial Documents for Caregiving

Some states recognize "springing" durable powers of attorney, which means the agent can start using it only once you are incapacitated. Some states don't, which means the day you sign the durable power of attorney, your agent can use the document.

Get resources and tips to help first-time caregivers with AARP's Care Guide

The risks of not planning ahead

A well-drafted power of attorney helps your caregiver help you. It can keep the gears of your life turning if you cannot.

This means everything from applying for financial assistance or a public benefit such as Medicaid to making sure your utilities stay on and your taxes are paid. Trying to do any of those tasks without the proper document is almost impossible.

According to a 2020 Merrill Lynch report, 43 percent of Americans age 55 and older worry that they don't have an advocate to look out for their interests as they age. Yet only a third of this age group has a durable power of attorney, the study found.

When I was my mom's caregiver, I had to help her without a power of attorney for six months. She hadn't created one before her diagnosis and was physically unable to see an attorney after.

It's an understatement to say how stressful it was to get things accomplished and advocate for her without one.

Cancer took my mom's voice, so she couldn't vocalize her wishes in more than a hard-to-understand whisper. More times than I can count, I was asked to put her on the phone so she could authorize me to talk about insurance or an overdue bill.

It was so frustrating that I pretended to be my mom a few times, which is not legal or advisable. I also signed her hospital and facility admissions paperwork, which exposed me to being responsible for her bills.

We both feared that certain unpredictable relatives would try to take over her decision-making or possibly exploit her.

For those reasons and more, as soon as she was able, she had a durable power of attorney prepared. We both felt relieved and more secure from that day forward.

Prepare documents early, update frequently

Today, as a caregivers’ lawyer, I often hear from new clients who want me to prepare a power of attorney for their loved one with dementia.

Although a dementia diagnosis alone does not prevent a person from signing legal documents, we cannot ethically let a person sign if they are not “competent.” Basically, this means that they are not able to understand the implications of the document.

The only recourse if a person is not competent to sign legal documents may be a court procedure known as a guardianship or conservatorship. These can be expensive, time-consuming and contested by family members who don't agree.

Assets can be depleted quickly, and relationships strained. The biggest risk as the care recipient is that you may not have a say in who will be the person the court appoints to make decisions for you.

So, please, don't delay. All adults, from the age of 18, should have a power of attorney in place.

And if you have one, consider whether now is the time to update it. If you've moved states of residence, if you have property in multiple states like a vacation home or if you are a snowbird, if you live in a state that requires you to renew your power of attorney occasionally, or if your power of attorney is more than a few years old in any state, it's well worth your time to speak with a qualified lawyer.

Your lawyer can also explain how to create your documents to limit possible exploitation and which additional documents complement your power of attorney.

With thoughtful planning and an understanding of your agent's authority, a power of attorney will give you peace of mind that your wishes will be followed and your best interests protected in times of crisis.

Editor's note: This article, originally published July 19, 2019, has been updated with more recent information and an AARP Top Tips video.