Question: My father signed health care and financial powers of attorney 12 years ago and named me as his representative. I am the oldest of three children. None of us lives close to dad. He is a widower and is living at home alone, but he really shouldn’t be. The neighbors check on him every morning and told me that a couple of times they have had to help him up from the floor, where he may or may not have spent the night after a fall.
He is still driving, but his doctor said he shouldn’t drive anymore because his reaction time is delayed and he has some dementia and confusion at times. I helped him make arrangements to have help at home, but he fired the caregivers after two weeks because “they weren’t doing anything.” He has a friend from church who brings him dinner three times a week. He just bought her a car.
My brothers and I are worried about his judgment and they want me to “do something” since I am the power of attorney. What can I do? — Mike S., Hendersonville
Answer: This is such a difficult situation. There are two kinds of decisions that need to be addressed: personal and health care issues, and financial issues. They are entwined, as there are costs associated with some choices, such as hiring caregivers, arranging for transportation, housekeeping and meal preparation, or a move to assisted living.
As health care power of attorney, you only have the authority to make binding health care and personal choices over your father’s objections if and when his physician determines that he can no longer make or communicate his own health care decisions. This is not a formal determination of incompetence — which is only done in a hearing before the local Clerk of Court — but must be reassessed as decisions are made at different intervals.
The financial power of attorney may or may not have language about when it is effective to confer authority. If it says that you can make financial decisions, for instance, after two physicians state in writing that your father can no longer make such decisions for himself, and you are able to obtain those two statements and have them recorded with the power of attorney, you should be able to access his accounts, pay for services and other bills, and deal with taxes and insurance and other financial matters.
However, under most powers of attorney, even a “springing” power of attorney as described above, your authority to act does not take away his authority to also act and make decisions. If he is unhappy with your intervention, he may or may not revoke your power of attorney.
If you are concerned his church friend may take advantage, or that he may be inclined to continue to make gifts to her, you may need to consider guardianship as a more permanent alternative. If you are successful in having your father determined to be no longer competent to make his own decisions in a guardianship proceeding before the Clerk, then any gifts or financial transactions he may make are void as a matter of law, and you have the right to override his decision-making.
A guardianship proceeding is unpleasant and expensive, and something to consider as a last resort. You would begin the process by filing a petition with the Clerk of Court stating you believe your father to be incapable of making health care choices and managing financial affairs. This petition will be served on your father by the sheriff’s department, and a lawyer will be appointed for him as a “guardian ad litem.”
The guardian ad litem would make a recommendation to the court about the need for a full or limited guardianship, and medical evidence would be presented at the hearing. Before you consider this alternative, you would want to seek the physician’s opinion on the effect of your father’s dementia and confusion on his ability to exercise judgment to make his own decisions.
An elder law attorney may be able to help guide a family discussion to encourage your father to allow you to hire a geriatric case manager to develop a care plan. If he is willing to comply with the care plan, then you may be able to avoid the necessity of a guardianship proceeding. On the other hand, if he refuses to comply with the care plan and to accept your help, then that may be some evidence to present at a guardianship hearing.
--Attorney Caroline Knox