I have been getting regular calls of late with regard to Powers of Attorney.
My phone messages usually read something like “Ross Geller called, his sister Monica just had a stroke and he needs a Power of Attorney for her.”
When I return these calls it often leads to frustration. The reason for that? Ross can’t get Power of Attorney for Monica unless Monica gives it to him, and oftentimes Monica is no longer able to do so.
Let’s start with a little terminology.
There are many types of Power of Attorney, but for this purpose I’d like to discuss the General Durable Power of Attorney. This is usually what Ross is looking for when he calls me about Monica and how he wants to help her out.
In Pennsylvania the person giving the power of attorney is called the “Principal” and the person who wants to act on the Principal’s behalf is the “Agent.”
The General Durable Power of Attorney is “durable” because it lasts even if the Principal later becomes incapacitated or incompetent. Frankly, that’s usually why we do them — so that someone can help if the Principal needs help down the road.
Its “general” because the Principal gives her Agent a whole lot of general authority, or powers. These powers can include access to bank accounts, the power to buy and sell assets including real estate, the power to make gifts, and nearly every other power the Principal himself has with regard to her finances and property. The powers aren’t limited to one specific bank account or real estate sale. The Agent steps into the financial shoes of the Principal.
That’s a whole lot of power.
It is worth saying again.
That’s a whole lot of power.
With great Power comes great responsibility.
Now, because this one document gives another person so much power, we as a society want the Principal to be able to choose her Agent. Maybe Monica doesn’t want Ross to be involved in her finances because she is worried he will spend her money on exotic animals rather than looking out for her. Maybe Ross’s own finances are a disaster and she is too much of a control freak to want him to have access to her stuff. She would prefer her best friend Rachel takes care of things for her. Or maybe her dad. Or someone else entirely.
The point is that its her money and her stuff and she should get to choose. She knows her people, their strengths and weaknesses, and she knows who she trusts to do a good job for her.
What a disaster it would be if that silly guy who lives across the hall from her could decide that she needed help and just call a lawyer to give him Power of Attorney. Or how about if all of her friends could do that and now she has five agents running around in the world with different ideas about how best to handle her finances? Chaos.
So Monica gets to choose her agent and gets to choose which powers she wants her agent to have.
That’s a pretty big decision!
In order to make it, Monica needs to be able to understand the document and all of the powers that it is giving to another person. Sometimes a person is able to understand all of those things following a stroke and in that case Monica absolutely can give a Power of Attorney to whomever she chooses. IF she chooses to do so.
If Monica is no longer able to understand the complexities and the ramifications of the Power of Attorney, then its too late. The law doesn’t permit her to sign it and no one else is permitted to claim authority through a Power of Attorney without her capacity and valid signature.
The last option on the table if its too late for Monica to sign a Power of Attorney is to ask the Court to appoint a Guardian to look after Monica and her affairs. This process can be time consuming, expensive, and has the huge downside that Monica doesn’t get to pick her Guardian. She is stuck with whoever the judge thinks would do the best job. But at least there IS a judge looking out for her and her interests.
There is no guarantee that anyone would protect Monica if the law were to permit Ross, Rachel, or anyone else who wanted to help to ask a lawyer to give them Power or Attorney once Monica no longer has capacity to do so.
I get the frustration. I do! Everyone who has ever called trying to get power of attorney for their mom, sister, or uncle has always been trying to help someone who can no longer help themselves. But I don’t have the option to decide to give those vast powers to the person who just called on the phone or who made an appointment to come in and see me. I simply cannot prepare a Power of Attorney unless I’ve met with the Principal and I am certain that she has understanding and capacity.
The authority granted in a Power of Attorney has to, must, absolutely, 100% of the time, come from the Principal herself.
-BECCA