Protecting the Client
By Tamra K. Waltemath, P.C. ~
“Can I get a power of attorney for my parent?” People call my office and ask this question quite often, so my assistant asked me to write an article about the issues involved in answering this question. We don’t know if your parent wants to appoint you to act for him or her or whether you may be a child who wants to take advantage of your parent. I realize that this may sound absurd to some of you because you think my assistant should know that you would never take advantage of your own parent, but it happens, and we see many children and other family members take advantage of the elderly. Elder abuse is a serious issue. A power of attorney is a document in which someone (the principal) appoints someone else (an agent) to make decisions for them and it gives third parties (banks, doctors) the authority to talk to the agent and give them protected information. A power of attorney may grant the agent significant legal authority to access bank accounts and investments, sell property and even change beneficiaries on insurance and retirement.
It is my job as an attorney to help my clients understand these types of issues as well as their legal rights and the practical implications of signing powers of attorney and or becoming an agent. The principal must be able to understand what a power of attorney is so that they can make an informed decision regarding who should be allowed to act for them and receive information, when that agent should have the authority to act, what powers they want to give their agent and what powers they want to retain for themselves. The principal must be able to give me directions; I cannot rely solely on what their children or others tell me. Your parent must be competent and they must understand, with my help, the implications of signing a power of attorney. It is not unusual for children to bring their parent in to discuss powers of attorneys, wills and many other legal documents. It is the policy of my office that I always speak with the parent alone when they are brought in by children or others because I need to know that the parent is not being forced into doing something that they do not want to do. Some children get very upset when I ask to speak to the parent alone, these are the clients I worry about.
So please, seek legal advice when your parents, or other family members are still able to understand legal documents and the ramifications of their actions. Powers of attorney may be effective upon the principal’s incapacity or disability so that their agent cannot act for them unless or until they become incapacitated or disabled, or powers of attorney may be available immediately. This enables your parent to handle their own finances until or unless they become unable to act. I do not want to unknowingly be part of a scheme to take advantage of an elderly person and so I will not be able to prepare powers of attorney for your parent if your parent is unable to understand the basic concepts of a power of attorney and give me instructions on who they want to act for them and when the power of attorney should be effective.
This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C. This information is for general informational purposes only and does not constitute legal advice. For specific questions, you should consult a qualified attorney. Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships. She can be contacted at: Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO 80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.