001: Caring for Elderly Parents? Get a Power of Attorney While You Still Can!

Aloha and welcome to Taking Care of Tutu, your Go-To podcast that explores the legal mechanics and real life experiences of how we care for our loved ones and ourselves using the tools of estate planning, probate and elder law. Your host, Meg Obenoff and our dedicated Maui-Based team are passionate about navigating the care and protection of parents and loved ones with the best legal tools available. Our episodes feature expert insights, stories and advice to help you tackle questions such as, "Do I need a trust or a will? And how do I navigate Medicaid for my loved ones?" We're here to make legal complexities accessible and relatable. So, if you're ready for a podcast, blending legal expertise with good stories, you're in the right place. Tune in as we explore the legal mechanics of caring for your Oana. Hi there, welcome to the inaugural episode of the Taking Care of Tutu podcast. I'm your host, my name's Meg Obenoff. I thought we would get started for the first few episodes just talking about some of the most important documents that people need for estate planning purposes. So I thought we could break those down for a few episodes. And then maybe after that we'll start having some different guests from the community talking about what's going on where they work and caregiving for elderly people. So the first episode today, we're going to talk about powers of attorney. I'm sure a lot of you have already heard or know what a power of attorney is. What it is is it's a document that says who can take care of your finances if you're no longer able to do that yourself. It's probably, in my opinion, the most important document for estate planning that anyone can have. A lot of times people procrastinate or don't want to do one because they feel like, "Oh, if I make one, then I will become incapacitated." But really when people don't have them, it's a much more difficult situation. What happens if you don't have a power of attorney, we see it all the time in our office, at least once a month, people are coming in, they bring their spells, their parent, their grandparents in, and they don't have a power of attorney. And when I start talking to the person, it's really clear that they don't, I mean, longer have mental capacity to make their own legal and financial decisions. They're asking the same question over and over. They don't really understand where they are or who I am or what they're here to do. If they no longer have capacity, it's too late. We can no longer do a power of attorney for them. And so then I have to recommend they do a court case, which is called a conservatorship. In Hawaii, we have combined a conservatorship guardianship. You can do both at the same time as one court case. A conservatorship is getting the court to appoint someone who manages your money. And a guardianship is appointing someone who manages the care of your person. If someone comes in, they want to do a power of attorney or their spouse or their child wants them to do a power of attorney. If they don't have capacity any longer and they don't have a power of attorney, we have to suggest they file for a conservatorship, guardianship. I'm sure you can understand that takes them a lot longer than a power of attorney. We have to draft paperwork, file a court and wait for a court hearing. So that's probably two months right there. Even if we have everything and we can turn around the paperwork quickly, we're not going to get a court hearing for probably eight weeks. And then they have to appear at the court hearing or get their presence waived and their family member has to appear. Most of us don't want to have a court hearing about whether we have mental capacity. We don't have to want to go to court or loved ones don't want to have to go to court, which is public and talk about our capacity. So all of that can really be avoided by having a power of attorney. That's something that you would do while you're still healthy enough and you have capacity to make that document. The kind of power of attorney that I'm talking about is a general, durable power of attorney. Sometimes we'll see specific powers of attorney. That's more for a specific transaction. I'm going to be out of the country. My son is going to sign because we're buying this house together. This one thing, this one time. The kind of power of attorney that I'm talking about is known as a general, durable power of attorney. You are saying who you want, making your financial decisions for you if you're no longer able to make your own financial decisions. Who do you choose for that role? Of course, you want someone who's trustworthy, someone who's responsible, someone who's going to take care of it and not just ignore it until it gets really bad. This skill set is someone who's good with paperwork, administrative type things. Doesn't mind calling 800 numbers if they have to. None of us love to do that, but someone who will do that if that's what needs to be done. If you have two kids and one is really good at that and one is a lovely person, but that's not their strong suit, then you should name them when, even if they're both responsible and trustworthy, you should name them when, who's good at administrative type things, because that's who's going to get it done. The other one might just ignore it. You can have two kids service power of attorney together. You would name them jointly. What's important to know about that is that means they have to make all the decisions together. If they disagree, then you're going to be at an impasse. If you want, if people want to name two people together, I'm always asking, do they get along very well? If they say, "Oh no, they hate each other," then I would advise that they not name those two people as joint powers of attorney. Or sometimes I have a couple where it's a blended family and they want one child from each parent to work together. But if they don't know each other, that's probably not a great idea. Another way you can name people is if you have two people who are great candidates to be your agent, but maybe once on the mainland and once here, you could say either of them. This person or that person, and that would mean either of them consigned. You wouldn't do that if you don't trust them to work together. You would do that if you trust them to work together, but just logistically, it might be hard for both of them to sign everything. But you wouldn't do that if you think one of them is going to try to take a bunch of money from the other one. So that wouldn't be a good choice. You would say either or if you have two great candidates and you're just trying to make it logistically more simple. Because people have three kids and they want it to be three kids by the majority. That's okay. That's better than two kids who have to agree on everything. I would not recommend three kids serving unanimously. That just seems like a lot of difficulty to me. That's who you can choose. Sometimes people have a very trusted, their best friend for the last 40 years and they live on the mainland and they have a neighbor who lives next door. I would say even though there's a geographical difficulty, you want the person who is trustworthy even if they're not here. I do not recommend naming someone that you don't know very well because we do see a fair amount of elder abuse, financial abuse and scams. So we really want the person that you choose to be someone that you've known for a long time and that you trust family or a friend that you've had for a long time, even if they're not located here on Maui. The banks will not serve as power of attorney but some trusty offices on a Wahoo well and some like accountants will for some of their clients that they know. So that's who can serve. Then the next question that I think sometimes people ask about is when does it go into effect? So there's two different kinds of powers of attorney. There's immediate and springing. Immediate means it goes into effect as soon as you sign the power of attorney. So if you make a power of attorney that says my son can manage my money and you sign it, your son can take and it's immediate. It goes into effect right then. Your son can take that to the bank and start transacting business on your behalf that day. That's the kind that a lot of our senior clients who are a little bit older starting to feel like they're having a hard time with tech book balancing and some of the financial transactions. That's the kind that they would typically have where it's immediate. One of the kids is maybe helping them anyway and they're going to name that child as power of attorney. What some of our younger clients prefer to do or I should say clients who have capacity, full capacity, high functioning, still working, still driving, they will do a springing power of attorney. It springs into effect. So even though you sign it, it's not in effect until you are declared incapacitated. And you can also say who gets to decide if you're incapacitated. So typically when I review older legal documents, they will usually say I'm incapacitated when two physicians say I'm incapacitated and you can still have it be that way. Your power of attorney can spring into effect when two physicians say you're incapacitated. I don't love that strategy, especially if your physicians aren't Kaiser, permanent because they will not write letters of incapacitated. So when we have clients who come to us with a document like that, I don't like how you can tell that kids, okay, in addition to caring for your mom and managing her medical appointments and everything, now you have to find two. outside of the Kaiser Network Physicians have them do testing. This is going to be private pay and have her declared incapacitated. It's expensive. I don't really feel like people need to say to physicians, you're welcome to say that. I think if you really want it to be a physician, you should have it be one physician. Certainly if you have Kaiser, you would have to pay privately to have a letter of incapacity done for you or your children or family members would. So if you're okay with that, then that's okay. A lot of our clients choose to do what's called a private disability panel, which is, hey, when my wife and my two kids by the majority say, "I'm incapacitated," then I'm incapacitated. So you can name one person multiple people up to you, but when those people say you're incapacitated and sign a letter to that, that's when your power of attorney will go into effect the person you name as an agent would take over at that point and would be able to transact business on your behalf at a bank with a mortgage company, things like that. So it's a really important document. A lot of us procrastinate, but so important to make them now while you can, because if you wait too long and something happens, then we have to do this court case called a conservatorship, and really nobody wants to have to do that. I think all adults should have a power of attorney. Even when kids turn 18, they go off to college, we like to recommend to our clients that they do powers of attorney and advance healthcare directives for their kids then, because if your child's 18, you don't get to make those decisions any longer for them. And so it's super helpful to have that in place. That's something that you need at some point. So anyone who's over 18, which is probably most of the people listening to this, it's a great idea to have a power of attorney. Okay, I think that covers everything. On the next podcast, we'll probably talk about probing, because we also are giving a lot of questions about that. Thanks so much for listening. I really appreciate it. And as always, if you enjoyed this and you can share it with someone or give us a good review, I'd really appreciate it. [Music]