Power of Attorney: The Powers of Protection

Power of Attorney: The Powers of Protection

A Power of Attorney is an important tool for ensuring the proper treatment of a loved one and preventing cases of nursing home abuse.  There are few legal documents in the U.S. as significant for elderly parents and their children as the Durable Power of Attorney.  A Power of Attorney allows a child, relative, or close friend to help their loved ones under nursing home care by acting in the exterior world on their behalf.  In trusted hands, this legal document makes a world of difference to nursing home residences.

The Power of Attorney grants you enormous power to act on another person’s behalf (often called a “Principal”).  Persons with Power of Attorney can write checks for their Principal, can buy or sell property for their Principal, and can have access to private information, including personal care information important to a legal investigation of a nursing home suspected of neglect or abuse.

Power of Attorney vs. Administrator of an Estate

When a person dies, the legal rights covered by the Power of Attorney disappear.  In order for someone to take care of the deceased person’s affairs, the Court must appoint an administrator.  That person (also called the Executor or Personal Representative) has many of the same rights and responsibilities as the Power of Attorney.  However, an administrator is named by the Last Will and Testament and can be someone entirely different from the person who had Power of Attorney when the deceased was alive.

If a loved one in a nursing home has named you Power of Attorney, it is a good idea to confirm that you are also named as the administrator of that person’s estate.

When Can a Nursing Home Resident Sign a Durable Power of Attorney?

The law requires that someone have a good idea what’s going on around them when signing a Durable Power of Attorney.  This does not mean someone who gets confused can never sign a Will or a Power of Attorney.  We all have our good and bad days.  But because the Power of Attorney may only be signed during a “lucid moment,” it is important to have your mother or father or other loved one under nursing home care take advantage of those better days by talking honestly with them and signing the Power of Attorney forms when you both feel confident in their comprehension.

As attorneys who deal with abuse and neglect in nursing homes, we suggest having the Power of Attorney papers signed before entering the nursing home in order to prevent unfortunate results later down the road.  However, changing a Power of Attorney or assigning one after a resident has been abused or neglected is completely within the resident’s rights, and we encourage you to talk ASAP with your relatives about this legal responsibility. Click here for a Durable Power of Attorney form.

Powers of Attorney from Place to Place

Another consideration to remember is that the laws governing your loved one’s protection are those local and state laws of the nursing home resident, not the person with the Power of Attorney.  For example, if you hold Power of Attorney and live in Arizona but your father stays in a Florida nursing home, Florida laws apply to the nursing home and to the Power of Attorney.  The biggest difference from state to state is whether the form must be notarized and if one or two witnesses are required.  Getting the Power of Attorney notarized and witnessed by two people is sound practice—even if state law does not require it.  The notary’s stamp conveys authority, and the presence of multiple witnesses communicates honesty.

Free Power of Attorney

You can print the free form here.  (Please note: This free service is not intended as legal advice.  You should consult a family lawyer if you have questions about these documents or contact the Consumer Justice Group if you are trying to investigate potential abuse or neglect.)  Make sure to keep your signed, notarized copies with your other important documents in a secure place.  You have an important first step toward protecting your family.  Remember, visiting your loved one is even more important.


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