Ask an Attorney: I’m a caregiver for my parents, what should I consider for their Wills and Powers of Attorneys?

This post is contributed by Network Law Firm Lincoln & Wenk  

Caring for an aging parent can be a labor of love.  These efforts can be complicated when a parent does not have some of the essential estate planning documents in place.  Most basically, these documents include a Last Will and Testament, Durable Power of Attorney, and Health Care Power of Attorney.  While it is optimal for a parent to have these documents created prior to having a need for them, there are still options for having these documents established as long as the parent has the mental capacity to make legal decisions. 

The most significant of these documents during a parent’s lifetime are the Durable and Health Care Powers of Attorney.  A Durable Power of Attorney, also referred to as a Financial Power of Attorney, allows the Maker of the document to delegate decision making authority to the person, or Agent, of their choice.  Upon the incapacity of the Maker, the nominated Agent has the ability to step into the shoes of the Maker with regard to all financial affairs.  Their powers include the ability to inquire about financial status, pay bills, pay taxes, manage bank accounts, and fulfill other financial obligations on behalf of the Maker.  Also, an Agent under a Durable Power of Attorney may have the authority to sell property, create a Trust for the benefit of the Maker, bequeath gifts, and manage the financial aspect of medical care.

The Health Care Power of Attorney is created by the Maker to allow the nominated Agent to make health care related decisions in the event the Maker becomes incapable of arriving at those decisions on their own.  The Health Care Power of Attorney Agent has the authority to make decisions regarding medical treatment, including medications and surgical procedures.  An Agent under this power is also permitted to carry out the Maker’s wishes with regard to autopsy and organ donation.  In some states, mental health care decisions are included in this Health Care Power of Attorney; however, in other states decisions related to mental health must be contained in an independent Mental Health Care Power of Attorney.  Certain powers are specific to the treatment of mental health issues, including the ability for an Agent to enroll the Maker in a structured mental health care facility, particularly important in the treatment of advanced dementia or Alzheimer’s disease.

Finally, a Last Will and Testament allows a parent to make provisions for the distribution of their estate after they pass away.  These provisions can include specific bequests to family members or friends, including gifts of a monetary nature, personal property, and real property.  A Will also nominates the person(s) the parent chooses to ensure that their last wishes are carried out properly.  This nominee, known as either the Personal Representative or Executor depending on the state you live in, is charged with following through with the instructions contained in the Will and ensuring that the last wishes of the Maker are followed completely.  A will can also outline specific memorial and funeral instructions, including whether the Maker would prefer cremation or burial, where their remains should be disbursed or interred, and if there should be a formal funeral or a simple ceremony. 

This blog is not intended, and should not be taken, as legal advice. Regulations will vary from state to state. You should contact an attorney for advice on specific legal problems.