We see recurring confusion about what it means to be appointed with authority over money in a Durable Power of Attorney (DPOA) for aging parents. The elders do estate planning and that is part of it. Good. A Durable Power of Attorney Document is signed by the aging parents. Good. But they can misunderstand what they’ve agreed to do when they need that person they’ve appointed to have decision-making authority. They need to allow what they said they wanted. Sometimes they don’t and vigorously resist giving up control. Likewise, the person appointed, typically an adult child, may be unaware of the appointment or doesn’t understand what they are allowed to do and when. It’s confusing!
At AgingParents.com, where we address this issue often, here are just three frequently asked questions of many we hear from families, with an abbreviated sample of answers we give.
Q: Can my Dad, who is in charge of our family finances and now has dementia, get rid of the DPOA he signed years ago, appointing me to take over managing his money when he needs help?
Answer: It depends! If your Dad has dementia, he needs to be evaluated by a doctor to determine whether he still has what the law calls “capacity” for making financial decisions. It is a legal determination, but with help from doctors and particularly psychologists who can do the evaluation and offer standardized test results. If he is found to have financial capacity, he can revoke the DPOA anytime. If he does not have financial capacity, he is no longer legally capable of revoking the document. Efforts to do so can be challenged but it can take going to court to stop him from revoking it.
Q: What if my Dad is found to be incapacitated for financial decisions? If I’m the appointed agent on the DPOA, when can I use this authority?
Answer: As long as you have met any requirements spelled out in the DPOA document itself, you can immediately take over financial authority. Some DPOA documents require that a doctor or even two doctors must say Dad no longer has capacity before you can act. (Bad planning on this from the lawyer who wrote it up when Dad refuses to go to one doctor, let alone two!) Other DPOAs say the document is effective immediately. Your authority is contained in the paper itself, which Dad probably signed and had notarized some time ago.
Q: Am I allowed to keep Dad from recklessly giving away money or doing dumb things with his wealth if I’m the appointed agent on his DPOA?
Answer: Yes, typically the DPOA gives the agent full authority over all financial matters. This is great if the agent is honest and acting in the aging parent’s best interests. It protects the impaired parent from financial abuse. But, if the agent is a thief or opportunist, the DPOA is a license to steal. And if that happens, there are legal avenues to stop the thief. It likely will require hiring an elder law litigator to intervene and seek removal of a dishonest agent with control over your aging parent’s money. Taking that step is expensive. The amount at stake should determine what the concerned family chooses to do.
I’ll address more of the many issues about the DPOA, sometimes called financial proxy or other names, in subsequent posts here. Since we at AgingParents.com are a nurse-lawyer, psychologist team, we see and consult on many aspects of problems families have with the DPOA. These documents are not monitored by courts unless someone brings a case to a court. It can turn into a free-for-all in families when an impaired parent resists allowing the appointed person to take over when needed. With good communication in your family and intelligent estate planning by competent lawyers, some of the many thorny problems we see can be avoided.