Beckstrom & Beckstrom, LLP

A person who is unable to effectively care for him- or herself may need more than just a caregiver. This person may need a legal guardian, or a power of attorney. The latter is a legal arrangement for the purpose of the individual retaining some of the rights to which he or she was granted as a U.S. citizen. The former removes all rights from the individual and leaves all decisions up to the legal guardian. Regardless of the  position you find yourself in, you should know and understand your role and your responsibilities to your loved one. 

Power of Attorney: How You Got Here

There are three ways you could have become someone’s power of attorney. In the first instance, the individual made out a living will and medical power of attorney assigning the role to you. You may have been made aware of it or you may not know it until there’s a major decision that needs to be made. In the second example, your loved one talked with you about power of attorney and requested that you sign a legal document agreeing to this role. You knew you had power of attorney, even if you didn’t know what that meant. Finally, the last example shows how a loved one might not be of sound mind or sound body and you personally pursued power of attorney over your relative. 

What a Power of Attorney Does

A power of attorney does not have the same amount of legal control over an individual as a legal guardian. In fact, most power of attorneys have limited say so that the individual is still able to have some decision making power. For example, your elderly mother makes you power of attorney. She has chosen you to determine what to do in the event that she is unable to make a decision. However, if she is in the hospital and is told that she needs an operation, you can choose to cancel that operation in favor of a different treatment. You veto her decision in the moment because you feel it isn’t the right decision. 

At any point in time, the power of attorney and the person over which the power of attorney holds sway may override each other. It does make things difficult, especially since this legal document is supposed to help make many decisions less difficult. Knowing who is supposed to be in charge when a power of attorney is in effect is the big sticking point. 

Yet, if someone is unable to speak for him/herself, or someone is not alert enough to make a major medical decision, that’s where the power of attorney shines. In this case, you take over and make decisions in the best interests of the individual. It’s also smart to have power of attorney over someone who has special needs so that major life events do not become major tragedies. A special needs adult with autism may need you to intervene if he were to be arrested, injured in a public fight, or be the intercessor with the police who may not have experience with a neurodivergent individual.

Most of the Time You Won’t Have Much to Do

Most of the time a power of attorney is a formality and a formal legal title. You may not have a lot to do, especially if the individual is fairly high functioning or able to still care for him/herself. It’s only when there are safety or medical issues involved that a power of attorney has to spring into action to protect that family member from harm. 

As power of attorney over an elderly parent, you may have to decide when it’s best to move your parent into an assisted living facility or nursing home. You may have to decide when it’s time to sell your parents’ house, or hire in-home healthcare nurses for around the clock care after a hip or knee surgery. It’s these kinds of decisions where the family member can rely on you to decide for him/her. In terms of an adult child with special needs, the decisions aren’t that different, except that you have to attempt to foster greater independence while securing the adult child’s ongoing safety.