We are your Southern California partner in estate administration and estate protection.

Three tips to help an aging parent get a power of attorney

On Behalf of | May 25, 2023 | Probate |

A power of attorney (POA) is a legal document that allows the creator (known as the Principal) to give another trusted individual (known as the “Agent” or “Attorney-in-fact) the power to make decisions about their finances. This is a powerful legal tool that is an important part of an estate plan — but how do we help our parents get their affairs in order? By first having our own POA prepared by our lawyer, so we can explain the benefit to our aging parent.

The following tips can help.

#1: Know what you need

California state law requires the creator of the POA be at least 18 and have the mental capacity to understand the consequences of creating the document. The creator (Principal/Parent) must sign the document and his/her signature must be notarized or signed by two adult witnesses who are not healthcare providers. (The notarization and witnessing is to make sure that the documents will be accepted in all States.) There are some nuances that can apply in certain situations, such as if the POA involves real estate (Specific Power of Attorney), or the creator is in a nursing home at the time of its creation.

The language used to create the POA guides its reach. It is a good idea to have legal counsel prepare the Power of Attorney. Most attorneys do not review a draft e-mailed in for review, whether using a fill-in-the-blank document or one written specifically to your Parent(s) situation. It is more cost-effective if the attorney prepares the document and is familiar with his or her documents.

The Principal, should chose carefully how little or how much power he/she wants to give to the Agent over his/her assets. For example, the Principal whether to allow gifting of monies to the Agent or to others. The three questions that the Principal will need to answer when going over his Power of Attorney include:

  • Who is the agent? (adult child, family member or friend)
  • How much power will they have over my assets? (Specific or General)
  • When will the POA be effective? (Now or when the Principal becomes incapacitated)

#2: Know how to have the conversation

This is not an easy conversation, but the following tips can help:

  • Start early. It is important to begin the process when the parent(s) still has or have the mental capacity to make these decisions.
  • Prepare to go slowly. Some may be ready to dive into the conversation while others may be caught off guard. It can help to ask a few questions at a time instead of bombarding the parent with everything at once.
  • Share a story. Ideally one of someone you both know. The failure to plan for these things can lead to catastrophic consequences including significant financial loses. The story could be a positive or negative. Either way it serves as way to transition into a conversation about your parent’s wishes.

It is best to have an Attorney experienced in the field of estate planning prepare the Power of Attorney along with other estate planning needs and help ease this transition to the next chapter of life. If you, the adult child, prepare the documents for the parents and name yourself as the Agent, that situation most likely may raise issues of undue influence and conflict of interest. It is best to make the appointment with the lawyer to help your parents out but do not attend the meeting for those reasons.

#3: Follow through

Once you have had these conversations, have your parents reach out to that professional and let the professional help your parents get the documents put together. Once they are ready, your parents will most likely let you know the location of the documents and let you know their wishes.