By Christine Caswell, Attorney
It is incredibly hard to care for aging parents when you live near them, let alone when you are hundreds or even thousands of miles away. Moreover, seniors don’t like the idea of losing their independence, so they may not be cooperative. If they are losing legal competence, the court may need to be involved, and children could end up as the opposing party against a parent in a court proceeding.
Here are some of the legal steps for anticipating incompetence or for dealing with it after it is too late.
Powers of Attorney
It is ideal if parents have powers of attorney (POA) for health care and finances put in place while they are still legally competent. A POA for health care allows the agent (personwho has authority to act under the POA) to make medical decisions when the principal (person who made the POA) is declared incompetent by two medical professionals. “Incompetent” can mean you are unconscious and not necessarily suffering from dementia. The agent is supposed to make decisions according to the principal’s stated wishes.
A durable power of attorney (DPOA) for finances allows the agent to sign documents and make transactions on the principal’s behalf. Note, the agent for a DPOA needs to be someone trustworthy because this document allows immediate representation. The advantage to a durable DPOA is that the courts and medical professionals do not have to step in before the agent can act on behalf of the principal. It is possible for someone out-of-state to serve as the agent under a DPOA, but this will still pose logistical problems. If there are trustworthy people (not necessarily relatives) near parents who can serve as agents under DPOAs, it may be easier. Regular accountings can be requested.
Guardianships and Conservatorships
These are court proceedings, and the courts are hesitant to put guardianships and conservatorships in place since they take away an individual’s rights. A guardian is responsible for taking care of the person’s day-to-day needs, and must report regularly to the court as well as visit the protected person. Michigan has professional guardians available if there is no immediate family member to take on this role. A conservator handles the financial transactions for the incompetent individual and must make accountings to the court. This person may be a hired professional as well.
For more information on these issues, contact Caswell Law PLLC at 517.282.1406 orl log on to www.caswellpllc.com
This was printed in the September 25, 2011- October 8, 2011 Edition.