010 – Helping Your Loved Ones as They Age
The greatest generation is aging and many people are finding themselves in the position of raising their children and taking care of their parents as they age helping them face the new challenges that await them. I worry for a lot of older people that they will become the victim of a fraud because of their reduced capacity or simply because they are lonely and like talking to people on the telephone. In both cases, our aging parents become easier targets for fraudsters. Hopefully, your parents haven’t faced this yet, but you are just wanting to help them out to prevent any future problems.
First things first, understand that asking for help is not an easy task. This is especially true when you have to ask your children or other loved ones you have taken care of to help you. Understand where your parents are coming from. Perhaps you are not being asked, but because of your parent’s financial behavior or inability to take care of their own affairs you have had to step in. In that case, be extra-sensitive to their feelings.
From a legal perspective you have a couple of options when helping your aging parents handle their personal affairs. The simplest avenue for you to obtain the legal authority to help them is by obtaining a general durable power of attorney. This power of attorney will allow you to become your parent’s agent and essentially you can stand in their shoes and do anything they can do on their behalf, except make a will. This is typically a very inexpensive proposition and you can have it prepared very quickly. An attorney can certainly assist you in preparing this document and if you would like to handle it yourself, you can visit LegalZoom through our affiliate link (6minutelegal.com/legalzoom) where you can purchase a power of attorney for as little as $35.00. Once this document is prepared, it won’t be affected by any subsequent mental incapacity by your parent.
To sum this part up, a power of attorney is a very inexpensive way to make sure your parents have someone they trust helping them with their affairs. But there is one caveat. Many people don’t want help while their mind is good. So, as long as they feel good, they don’t feel the need to execute a power of attorney. In general, once a power of attorney has been executed it becomes valid so the agent receives their powers and can start handling things for the principal immediately. There is such a thing as a springing power of attorney that is executed now but does not go into effect until the principal becomes mentally incapacitated.
But what happens if your loved one becomes mentally incapacitated prior to executing a power of attorney? If your parent or loved one does not have “contractual capacity” that is the mental capacity necessary to enter into a contract then they cannot execute a power of attorney. If they need help managing their day to day personal affairs or if they need assistance with medical issues and living, then you will be forced to go through the much more complex process to seek a guardianship and/or conservatorship. A guardianship essentially will put you in the position as the “parent” of your loved one and you will make the decisions for them as if they were your child as they relate to their person. If you also need to manage their finances and property you will have to obtain a conservatorship to have that authority.