How do I invoke power of attorney?

N1K2R3.....Did you ever think that maybe she has nothing in her pockets? I am taking care of my parents who both have dementia plus other medical issues.
I am on disability and money is VERY tight. I am having a hard time supporting myself, let alone being caregivers for them. Believe it or not, there are many, many expenses involved when caring for elderly people and not every elderly person has a pension or a savings account. They are living on SS only. And when , as in my parents case, monthly medications and doctors bills take the majority of their income some things can not be taken care of unless the caregiver pays for it. which brings me back to empty pockets. It's a hard enough job being caregiver when all goes right. Please think next time before you post.

As OrganizeMyLife says, POAs are generally immediate or "springing." A "springing" POA only becomes effective if something specific happens -- for example, if a doctor (or two) certify that the person has become incapacitated.

When I saw early signs of dementia in my Dad (some small short-term memory issues), we sat down and discussed it, and he signed a durable non-springing POA, so that I would be able to use it immediately. I then did not need to use it for several years ... but as time went on, and I found I needed it more and more in order to discuss his accounts, pension, etc., as he became less able to handle his finances, I was able simply to produce copies for the organizations in question.

Most entities/organizations have procedures in place for you to snail-mail or fax a copy of the POA to them, and you should call to ask them how to do this and where to send it. Most keep it "on file" once you have submitted it. You can certainly register or file a DPOA with your local county courthouse, and but you generally don't actually have to do this in order to use it ... and doing so will NOT cause you not to have to produce a copy (or, occasionally, the original) for every separate organization or entity (at least the first time you need to use it with that organization or entity). Back when my Dad signed his DPOA, he didn't want it filed with the County, because he didn't want there to be a "public record" (I doubt it would have been public, but I understood his concern) that he was having problems ... it made him feel too vulnerable, since he lives alone. Check with your particular county or state to determine what your local laws are.

Note that a DPOA (also sometimes called a "durable power of attorney for finance") is SEPARATE from a health-care POA, and must generally be notarized and witnessed by two "independent" witnesses.

Also, note that durable powers of attorney are very individual, so you and your loved one should be sure that the powers the POA grants are the powers that you agree you will need ... or, at the very least, the powers your parent feels comfortable granting. You could draft the POA (or, possibly more safely, ask a lawyer to draft a POA), for example, so that it gives the "attorney in fact" (i.e., you) the power to pay bills, but not the power to enter transactions/sell real estate ... or the power to sell real estate, but not the power to sell stocks ... to manage finances, but not to make gifts from you loved one's assets ... and so on. In our case, we drafted the POA to be immediate, not springing ... and to grant every conceivable power ... because we didn't know what the future would hold or what I might need.

Most importantly, note that a person requires sufficient "legal capacity" to grant a durable POA to another person, just as a person requires sufficient legal capacity to execute a will. This means that the person granting the POA must still be competent enough to fully understand what a POA is, and to be able to make the decision to grant it without being under "undue influence" by the proposed "attorney in fact." It is critical, therefore, to have a POA in place WELL before your loved one's dementia progresses to the point where the POA is "assailable" (for example, by another family member or potentially interested party) as having been signed by the person with dementia after he or she no longer had the legal capacity to understand what he or she was signing or to fully appreciate what the consequences of signing such a powerful instrument could be.

If your loved one no longer has the legal capacity to execute a POA, then you will instead have to go the route of applying for a guardianship or conservatorship in order to take over their affairs and acting for them when they become incapacitated. Getting a guardianship or conservatorship is a more painful process, as I understand it, so if you can see that you are likely to need a DPOA down the line, and your loved one is still able to understand what this means and to discuss with you what he or she wants and to execute a DPOA, I urge you not to wait, but to have that discussion today.

Also note that a person who grants a DPOA can "undo" it as long as he or she has the legal capacity to do so.

Faye, whether or not you can sell your mother's home at all while she is still alive actually depends on whether you have a durable POA from your mother, and if so, specifically what powers it grants you. Whether or not you have a DPOA, certainly, if the home is owned by your mother and another person (one of her sons), you would not be able to sell it in any event without the agreement of that son. But assuming he DOES agree that it should be sold, and assuming that you DO have a DPOA for your mother giving you the ability to sell her real property, then yes, you should be able to "stand in for her" when it comes to selling the property.

If your mother never signed a DPOA -- and no longer has the legal capacity to do so -- then I think you would be unable to sell the house unless you apply formally to the courts for a guardianship/conservatorship ... I don't know exactly how this works, but in broad strokes, understand that it would require one or more physicians to certify that she is no longer competent to manage her own affairs, and further require that the court agree to make you the guardian/conservator (which, as I understand it, would require you to submit financial reports regularly to the court to show how you are managing her affairs). I am not an attorney, and if you feel that this step is necessary to help your Mom pay her bills, you should consult one.

This being said, if your mother is running out of money, she is probably eligible for (or becoming eligible for) Medicaid ... if she applies for Medicaid, most states will "exempt" her home from her list of "available assets" as long as she wants/hopes to return to it someday (whether or not she can return to it is immaterial as long as she plans someday to do so), and will start contributing to her care -- but after she passes, be aware that most state Medicaid programs will then require that they be repaid for money spent from her interest in the home. Still, this may help you now if you are running low on the funds that your Mom needs for her continuing care, but don't have the legal power to sell her home (again, see my notes on DPOA above).

And regardless of whether or not you have a DPOA that grants you the ability to sell your mother's home (with the co-owner's cooperation), if your Mom still has legal capacity to make decisions and execute a sale of her home, then definitely sit down with her and talk about the financial realities. I am trying, with my Dad, to respect his remaining autonomy for as long as possible, and only to use the DPOA on his behalf only where I need to. I always tell him what I want to do, and explain the reasons why, before I do it. I have been very lucky so far to be trying to care for a loved one who is aware that he has a problem and who trusts me to look out for his best interests. At some point in the not-too-distant future, I can see there will come a time when I will need just to execute the DPOA powers without discussing everything I do with my Dad, because he will find the reasons for what I'm doing too complicated and frustating to follow. Nonetheless, I am keeping a careful diary of everything I do and when and why, just in case my siblings have questions down the road. :-)

I care for my aunt that suffers from dementia, she doesn't know what day it is, or where she is most of the time, mine and my mothers name is on her bank accounts (I pay all her bills and do all her shopping) She is in AL and I have Health Care POA but not DPOA. How do I obtain a DPOA? I am going to have to be able to sign her name to documents since she receives VA benefits and she is beginning to not understand why she has to sign her medical expense reports etc.....

It may be different in different states, but we just used it. If you need to do anything on behalf of your mother you will need to give the POA. I scanned it and I email it along with whatever business I need to take care of. Typically the regular entities that you will be in contact with will keep it on file and refer to it. I always have copies and can fax it at anytime.

Read the POA, it should say if it is effective immediately or if it is a "springing" POA which means that some event has to occur before it is effective, typically something like "upon certification of a doctor of my mental incapacity." Depends on your state as to whether there is even the option for it to be springing. If it is effective immediately, you are able to use it as you need to right away.

Not knowing how to invoke power of attorney I learned that I all I had to do was "use it." One problem I did encounter was that I needed the "original" in two instances: at the tax office to transfer the title of my mother's car into new owner's name and another time for property business. Other than those two instances I've been able to use a "copy" of the POA. Like Rackem, I've mailed and faxed scanned copies for general purposes: to discuss her medical bills, her personal bills, etc.

It is common for a POA to become effective only if a doctor diagnoses a disability or incapacity. However, I'm not sure how the POA will help you with your challenges with your mom. Is her doctor aware of your challenges? Does her diagnosis match her symptoms? Would a home health aid be able to help her with bathing and washing her hair instead of you? If she has dementia, the Alzheimer's Association in your area might be able to give you ideas how to work with her. If she has mental health issues, contact your local mental health agency. Also consider contacting the family caregiver program in your area to get ideas on caregiving and ways to help you cope with the stress.

Faye - is the house empty? Do the sons agree to sell it? Do you have a POA that says you are authorized to sell it on her behalf? If she lived in it for 2 of the last 5 years, she can have a gain of $250,000 without paying taxes. If she was married and her spouse died last year, it can be sold this year with a $500,000 exemption. If the sons agree to sell and you have a POA that says you are authorized to sell it on her behalf, then you can sell it. Ask a realtor to run comps in the area and tell you the value, then you can decide if it makes sense to sell it now or come out of pocket, if you can afford to, and then get reimbursed after she passes and the house is sold.

i would like to hear more about what happens when someone goes through all their savings, but still has SS monthly income but then must go on Medicaid.....i have heard terrible stories about after someone passes and the 'state' expects a pay back. a friend of mine who was not a fmaily member, but did have medical POA for an elderly woman received a 59,000.00 bill from medicaid after her friend passed.

I have a General Durable Power of Attorney signed by my mom which allows me to act for her in a fairly broad number of instances. It was drawn up by an attorney and notarized. As far as I can tell there is not difference between the original and the copies. As far as I know, at least in New Jersey, there is no need to "invoke" the DPOA. Once it's been witnessed, signed and notarized just present it to the party you are dealing with. I've done this with hospitals and re-hab facilities for my mom and there have been no problems. Note that a general DPOA is different from a Health Care Proxy which relates solely to medical treatment decisions.