What Is Power of Attorney?
Power of attorney (POA) is a legal document that gives another person (or persons) the right to perform specific duties on your behalf.
The person granting their decision-making rights in the POA document is called the principal, and the person being given the right to act on the principal’s behalf is called the agent (or attorney-in-fact).
Authority granted through a POA may be limited to a specific transaction or give another person(s) a full range of decision-making rights related to your health care and finances.
Additionally, a POA document can be temporary or permanent (usually called a durable power of attorney). A POA can go into effect immediately, or it can take effect only if you become unable to act on your behalf because of an injury or disability.
There are two main types of power of attorney:
- Medical POA (also known as health care POA) gives your agent the right to make your health care decisions if you become incapacitated.
- Financial POA allows your agent to manage your financial affairs on your behalf.
Every state recognizes power of attorney documents, but each state has different laws. Generally, the laws in the state where you live when you sign POA documents will dictate the rights of your agent.
What a Power of Attorney Can Do
While the rules differ by state, your agent will have certain rights to act on your behalf based on how you structure the POA document.
It is crucial to consider what you want your agent to be able to do for you if you become unable to make your own decisions. This is especially true for the elderly, who can easily become victims of elder abuse. Additionally, they may need to move into an assisted living facility, nursing home, or another type of care facility, making it advisable to have a trusted agent in their corner.
Examples of what a medical power of attorney can do include:
- Carrying out health care directives
- Deciding what doctors the principal sees
- Determining whether the principal should live in a nursing home
- Making decisions related to medical care, surgical options, and psychiatric treatment
Examples of what a financial power of attorney can do include:
- Accessing the principal’s bank accounts and assets
- Applying for benefits such as insurance for nursing home care, including Medicaid or Medicare
- Applying for U.S. Department of Veterans Affairs (VA) benefits if the principal is a U.S. military veteran
- Collecting debts for the principal
The agent may also be able to file a lawsuit for nursing home abuse or neglect if an incapacitated principal is the victim of elder abuse.
What a Power of Attorney Cannot Do
Again, remember that the rules for power of attorney differ from state to state. That said, there are generally some things that an agent cannot do.
A person with power of attorney generally cannot:
- Break their duty to act in the principal’s best interest
- Change the principal’s will
- Make decisions for the principal after they die (unless they are also executor or administrator of the principal’s estate)
- Transfer power of attorney to someone else (they can decline their duties but cannot decide who will take over for them)
Because of the far-reaching impacts of the decision-making authority you give to another person, it is imperative to choose a POA agent very carefully.
How to Choose an Agent to Act as POA
Choosing an agent is a personal decision you should take seriously. Some people decide to have a different agent for their medical POA and financial POA, while others choose the same person.
When choosing an agent, determine the types of things you’ll want them to do for you.
Duties of your agent could include:
- Accessing your money
- Deciding when you should move into a nursing home
- Determining what kind of medical treatment you receive, including life-saving care
- Dividing your assets after you pass away
- Handling your financial affairs
- Making gifts from your estate
The bottom line is that no one can decide for you. You should choose your agent(s) very carefully. Having a long conversation with them is the best place to begin. You may also wish to consult with an attorney to ensure you understand your state’s laws.
Qualities to Consider in Choosing an Agent to Act as POA
Your agent cannot be a minor, and they cannot be incapacitated, but beyond that, you should use your best judgment when choosing your agent.
When granting someone power of attorney, you should consider asking yourself the following questions:
- Are they compassionate?
- Can you trust them?
- Do their values align with yours?
- Do they act with integrity?
- Do you feel they make sound decisions?
- How well do you know them?
- Would you consider them to be responsible?
Choosing a family member is common, such as a spouse or child (or children). It is also wise to name one or more successors in case anything happens to your agent.
When is a Power of Attorney Needed?
There are many reasons for needing a power of attorney. One of the most important times you need a power of attorney is for any situation that makes you unable to act on your behalf. Examples of these situations include unforeseeable accidents or illnesses that lead to incapacitation.
What If There Is No POA for My Disabled Loved One?
If your loved one cannot make their own decisions and has no power of attorney, you may need to go to court to have someone appointed.
Depending on the situation and state, a court may name the following to be decision-makers:
This is why you and your loved one need to put a power of attorney in place before it is too late. You do not want to be powerless over your loved one’s affairs, especially if they will need caregivers, serious medical treatment, or long-term care in a nursing facility.
Tragically, vulnerable elderly adults in nursing homes often become victims of nursing home neglect or abuse and need someone with legal rights to act as an advocate.
Power of Attorney for a Loved One in a Nursing Home
When a loved one enters a nursing home – or if there is a chance they will – it becomes vital to have POA documents in place. Some nursing homes offer to draft POA documents as a service. However, it is important to understand these documents fully before signing anything.
Depending on the type of power of attorney, an agent could lose their rights if their loved one loses their decision-making ability. Additionally, if you are your loved one’s financial POA only, you will not be able to make their health care decisions for them once they cannot make them on their own.
In these sad situations, state law will determine who gets the right to decide for your loved one. Understanding the relationship between having a power of attorney and stopping nursing home abuse and neglect makes it especially important.
Power of Attorney and Nursing Home Abuse
If your loved one is in a nursing home, find out if they have already completed power of attorney documents. If so, access them, and ensure you understand what the POA documents permit.
If you have POA for someone suffering from nursing home abuse and neglect, it is important to recognize that you can likely file a nursing home abuse lawsuit for them. A nursing home abuse attorney can help you understand your legal options.
At a minimum, you have an obligation to the person who made you their agent to take action to help keep them free from harm. If they are in immediate danger, call 911 without delay.
Power of Attorney for Dementia Patients
It is vital for people living with Alzheimer’s disease and other forms of dementia to have power of attorney documents.
As these diseases progress, people with dementia will become unable to make their own decisions, making it critical for a trusted loved one to have the proper legal documents in place.
Power of attorney documents for dementia patients are essential because they:
- Allow timely medical decisions to be made
- Ensure the principal’s wishes are carried out
- Give access to income and assets needed for care
- Help protect the principal from mistreatment
Tragically, according to the National Center on Elder Abuse, almost 50% of older adults with cognitive impairment – such as Alzheimer’s or another form of dementia – experience elder abuse.
Older adults and people with cognitive impairment are especially at risk because they depend on others for a great deal of assistance. Often, the people they depend on are not adequately trained to provide the care they need.
Additionally, because of the memory, speech, and judgment impairments dementia creates, it is harder for elderly residents with dementia to identify and report abuse. This powerlessness leaves them vulnerable to nursing home neglect, physical abuse, emotional abuse, and even sexual abuse.
Your lawyer should write power of attorney documents for dementia patients to be “durable,” which means the documents are still valid after the principal can no longer make their own decisions.
If you have POA for a loved one with dementia in a nursing home, you must look for warning signs of abuse to ensure they stay safe. If you have concerns, speak up.
Power of Attorney Abuse
Unfortunately, it is common for an agent acting as POA to abuse their powers. In these cases, they may be committing crimes.
Power of attorney abuse may be violations of federal or state laws, such as:
- Financial exploitation or financial abuse
- Fraud, such as credit card fraud, tax fraud, or welfare fraud
- Money laundering
- Unlawful gifting
In these instances, concerned friends and family should report the suspected power of attorney abuse to law enforcement.
Who Can Commit Power of Attorney Abuse?
Sadly, anyone acting as an agent can commit power of attorney abuse.
People who might commit power of attorney abuse include:
- Family members
The important thing to remember is that the power of attorney documents specifically lay out what the agent can and cannot do. By locating and reviewing these legal documents, it may be possible to stop power of attorney abuse if the agent acts outside their authority.
Power of Attorney and Nursing Home Abuse Lawsuits
If you have power of attorney for someone being abused or neglected in a nursing home, you may have the legal right to file a lawsuit on their behalf.
Your ability to file a legal claim will depend on how your POA legal documents are written. If you are unsure, you should locate the documents and review what types of decisions the principal authorized you to make for them.
A skilled nursing home abuse lawyer can help you if you do not know where to find the documents or if you do not fully understand them.
If you were not granted power of attorney or if it has expired, you may still be able to help. You may be able to get a court order naming you as guardian or conservator for the abused nursing home resident.
Get a free case review without delay if you want to speak with an experienced nursing home law firm near you to discuss your legal options.
FAQs on Power of Attorney and Nursing Home Abuse
What is power of attorney?
Power of attorney (POA) is a legal document through which one person (the principal) gives specific decision-making authority to another person or persons (the agent).
Depending on the POA document, the agent can act on the principal’s behalf to make certain financial and/or medical decisions.
Does my loved one need a power of attorney?
It is a good idea for many people to name an agent in power of attorney documents. Unexpected accidents and illnesses can leave a person unable to make their own decisions.
If your loved one is elderly – especially if they have a condition such as Alzheimer’s disease or another form of dementia – they must have the proper power of attorney documents in place.
Do I need to be named in power of attorney documents to file a nursing home abuse lawsuit?
If you are not the agent for a person being abused or neglected in a nursing home, you will most likely need to get a court order that names you as guardian (or conservator) to file a nursing home lawsuit.
Can you obtain power of attorney without consent?
To have a valid POA document, the principal must have the mental ability to understand what document they are signing and what the document does.
If the principal is already incapacitated, you cannot get POA without their consent. However, you can seek guardianship (or conservatorship) through a court order.
Can a nursing home override power of attorney?
When nursing home residents cannot make their own decisions or exercise their rights, agents with power of attorney can act on their behalf. If no POA document exists, family members considered legal representatives can generally step in.
However, in cases where the nursing home resident is deemed to have legal decision-making ability, the nursing home must abide by the resident’s wishes, no matter what loved ones say.