Powers of Attorney: Only YOU have the power

Jennifer Stuart

RALEIGH, March 27, 2017 – As an attorney, I often get calls from well-intentioned family members who want to “get power of attorney over Grandma.” These family members are sometimes taken aback when I tell them that I’ll need to speak directly with Grandma and that she, not the family member, will be my client if I prepare that power of attorney (POA).

Often these family members are taking great care of Grandma and just want to remove obstacles to doing what’s best for her. Grandma’s bank may have told them that they need a POA to access her money to pay her bills. If she’s in poor health and/or hard of hearing, or maybe even mentally incompetent, her family may be calling me because they feel protective of her and don’t want her to struggle through a difficult conversation with a stranger about her personal affairs. They may even tell me that Grandma wants them to just get the POA done for her. I empathize with these families.

Still, I do have to insist on talking directly with Grandma. Many people don’t realize that the only person who signs a POA, besides a notary, is the individual authorizing someone else to handle their affairs. A valid POA can never be created without the consent of the person whose affairs will be handled by another. Only YOU can give the authority for someone else to handle YOUR affairs under a POA. And that authority may only be given by you voluntarily and at a time when you are mentally competent.

If you’re the one who will sign a POA, it’s important to understand that you may be giving someone broad access to your accounts and property. This means that POAs can too easily be exploited and misused by self-serving people, even if those people are family members. And unfortunately, there are some family members seeking to “get power of attorney over Grandma” who are not well intentioned and who really just want a way to transfer an elderly person’s money or property to themselves. Nobody should ever, under any circumstances, put pressure on you to sign a POA or make decisions for you about the terms of your POA.

If you do sign a POA, it is extremely important to choose wisely the individuals who will handle your affairs. You should choose responsible, dependable people who you have known for a long time and can trust without any misgivings. It also helps to pick someone who is organized, good with details, and already familiar with your financial matters. You have many choices about which financial matters you can authorize that person to handle for you. Standard forms giving broad authority are often used, but those forms may always be tailored to limit the authority given. Ideally, you should consult with an attorney about the type of POA you need and make sure the form reflects exactly what you want. You absolutely have the right to make decisions about your own POA and even to revoke the document if you change your mind about it later (as long as you are still mentally competent).

All of that said, preparing a POA is a great precautionary step to take so that you can make certain choices while you are able to make them and try to avoid problems in the event that you become unable to manage your own affairs. So by all means, get a power of attorney prepared, but take time to weigh your choices first and make sure, before you sign it, that the document reflects your decisions and nobody else’s.

Jennifer Stuart is an attorney in Raleigh with Legal Aid of North Carolina's Senior Law Project (SLP). She writes monthly articles about legal issues affecting seniors. The SLP provides free civil legal help to North Carolinians who are 60 or older. To contact the SLP, call 1-877-579-7562 (toll-free), Monday through Friday, 9-11 a.m. and 1-3 p.m.