Protecting The Client
“Can I get a power of attorney for my mother?” People call my office and ask this question quite often so my assistant asked me to write an article about the difficulty we have in answering this question. 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. We don’t know if your mother wants to appoint you to do these things for them or whether you may be a child who wants to take advantage of their parent. I realize that this may sound absurd to some of you because you think my staff should know that you would never take advantage of your own mother, but it happens and we see many children and others take advantage of the elderly.
It is my job as an attorney to help my clients understand their legal rights and explain the practical implications of their actions. I must be able to explain to the client 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 person should have the authority to act and what powers they want to give their agent. The client must be able to give me directions and tell me what to do; I cannot rely on what their children tells me the client wants, and your parent is my client if he or she is the one signing the power of attorney. Your parent must be competent and they must understand, with my help, the implications of signing a power of attorney. We have children bring their parents 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 client 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, ask your parents to prepare powers of attorney when they are still able to understand legal documents and the ramifications of their actions. I can make powers of attorney effective only upon their incapacity or disability so that their agent(s) cannot act for them unless they become incapacitated or disabled. This enables your parent(s) 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 parents if I am unsure of your parent’s capacity.
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.