It’s easy enough to download a standard power of attorney form from the internet. But, for three reasons, both Flynn and Rubin recommend using an experienced attorney to draw up the form.
First, the power of attorney document should be tailored to your family member’s specific situation and preferences. For instance, Rubin said, he has two dogs and wants to make sure the person to whom he assigns power of attorney not only is empowered to pay their vet bills if he’s unable to manage his own affairs, but also take over decisions about their medical care.
Second, rules on how powers of attorney are structured and what they may entail differ from state to state, he noted. For example, some states let you have a “springing” or “contingent” power of attorney that only goes into effect under certain circumstances that the client specifies (e.g., when two independent physicians assess that a person is no longer competent to act on their own).
Or you may opt to have a durable power of attorney that goes into effect immediately. But that doesn’t mean the elderly person, if cognitively able, can’t also maintain control over their finances.
(This guide from the Consumer Financial Protection Bureau offers more details on the fiduciary responsibilities a person assumes when granted powers of attorney.)
The third reason it pays to have an experienced attorney draw up the form is because that lawyer can provide helpful counseling, not just on the options available, but also in helping your family member pick the person whom they can trust most to act as their fiduciary, Flynn said.
Take the case of an elderly parent, who is considering naming one of their adult children to hold power of attorney.
“It’s about having those candid discussions. I will always have a private meeting with the elder to assess that there are no issues with the child [they’re considering],” Flynn said. For instance, does the child have a history of gambling or bankruptcy? Do they have an overbearing spouse who might push for certain actions to be taken?
There also can be periodic discussions with the client after a plan is in place, because situations can change. A client can always revoke the power of attorney if they feel a person is not acting in their best interest, Flynn said.
It’s also up to the lawyer to convey frankly to clients that while powers of attorney are set up to carry out their financial affairs when they can’t themselves, in the hands of the wrong person those powers can be used to exploit them, she said.
