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Posted: March 25, 2004

Demystifying Powers of Attorney

A Primer for Caregivers and Their Elderly Alike

Editor?s Note: Power of attorney. The phrase is often heard in caregiving circles, but is it well understood? Can a caregiver navigate through the meaning of the term and its related vocabulary, and will you, as caregiver, know how to coach your loved one into and through the process? Attorney Howard Angione sheds light on the topic for caregivers and elderly alike.

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Who should an elderly person name in the key role of "agent" when signing a power of attorney?

The core answer is that the choice should be someone the person trusts. The agent named in the typical durable power of attorney is authorized to act for the "principal" ? the elderly person, in this case -- immediately, and the powers given to the agent cover a wide variety of actions, including the authority to sell property and spend money. Even the agent in a so-called "springing" power of attorney has the same broad range of authority, although it does not take effect until a doctor certifies that the principal is no longer capable of acting.

Of course, if the agent later abuses the authority given in the power of attorney, lawsuits can be filed in an attempt to regain improperly spent funds or reverse improper transactions. But this is a long and costly process, and it is likely to be complicated if the principal is no longer able to press the charges.

Under normal circumstances, the logical choice for an agent is the adult child of an elderly individual. Although there are exceptions, it is generally not wise for individuals to give a power of attorney to someone who is not related to them by blood. Even if the potential agent is the spouse of one of the children, there is always a risk of later family discord and misunderstanding, particularly if an unanticipated event such as a divorce occurs. Although a power of attorney can be revoked, it can be too late if the principal has lost the mental ability to do so or to execute a new document.

When choosing among the children, there is a natural tendency to name the oldest child, but this is not fixed in stone. The proximity of the agent should be considered. If the parents live in New York and the oldest child lives in California, the logical choice is a younger child who lives near the parents.

When several children live nearby, the next question is who has the most time available to act on behalf of their mother or father. A daughter who has a flexible daytime schedule for chores such as visiting banks may be a better choice than an oldest son who works rather inflexible 9-to-5 hours.

Another option may be to name more than one of the children. When this is done, the elderly principal then has the option of specifying whether any transaction must require the signatures of both agents, or whether each agent may act individually under the power of attorney. The dual-signature approach makes sense if there is concern about the ability of either agent to act wisely if entrusted with sole responsibility. Dual agents can be a logistical problem, however, because the requirement that both agents sign all checks and other documents can become quite a burden. The either/or option makes sense when both individuals are comfortable with one another and the elderly principal wants to give them maximum flexibility in the unknown future.

To minimize the possibility of family discord, it is always best to involve as many of the children in the process as practical. The typical power of attorney provides not only for a "primary" agent or set of agents, but also for one or more alternates who can act if the primary agents are unable or unwilling to serve at some future time. Thus, a younger child may be named for this backup role, or it might be the oldest child who lives thousands of miles away and would need to step forward if circumstances changed.


When a husband and wife are making decisions about a power of attorney, the common practice is for the wife to name her husband as the principal agent, and the husband to name his wife. Here, a backup agent becomes critical. If the husband's health is the first to fail, his wife can step in, but if she later becomes ill or dies, the advantages of advance planning will be lost if no backup agent has been named.

Although powers of attorney can be prepared without the assistance of a lawyer, the better approach is to have a lawyer involved. An attorney specializing in eldercare issues will be conversant with special powers that should be included in the document. In addition, a power of attorney that was prepared by, and probably notarized by, an attorney is often accorded more credibility if a legal question arises about its validity. This may be especially relevant if the power of attorney must later be used to sell property and the title company wants to be comfortable that the document is not likely to be challenged.

Another advantage of consulting an attorney may simply be the opportunity it provides for the elderly parents to have a discussion that sorts out their needs and objectives. And if all or most of the children participate, it helps to assure that there is good communication among family members. The vast majority of problems that later arise with powers of attorney can be traced to lack of communication when the parents made their initial decisions. A simple statement by a parent to the effect that "I love you, but you live a long way from us" can go a long way toward avoiding a later charge that "You tried to pull a fast one with Mom and Dad while I was out of town."

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Howard F. Angione is an elder law attorney in Queens, New York, and the editor of publications on guardianship and trusts and estates. He also is a member of the executive committee of the Elder Law Section of the New York State Bar Association and serves as editor-in-chief of the bar association's magazine Journal. He can be reached at angione@nyelderlaw.com

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Commercial use, redistribution or other forms of reuse of this information is strictly prohibited without the prior written permission of Pederson Publishing.

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