Category Archives: Powers of attorney

“Finding your Feet” – Planning for Incapacity

Posted on April 21, 2018

I went to see the movie “Finding Your Feet” at Railroad Square Cinema in Waterville yesterday. Why does a feature film get a mention in my blog, you wonder? Well, without giving too much away, the film was a wonderful celebration of life and chance for renewal – even later in life. Also, one of the characters suffers from Alzheimer’s disease. (For more about the movie, check out the New Your Times review: https://www.nytimes.com/2018/03/29/movies/finding-your-feet-review.html.)

Among the many sad aspects of Alzheimer’s is the loss of one’s capacity to make legal decisions. The potential loss of capacity – not only from Alzheimer’s, but a stroke or a freak accident at any age – is one of the reasons we recommend that almost everyone should prepare a durable power of attorney and advance health care directives. If someone loses capacity without having prepared either of these documents, it can be very difficult for loved ones to handle the person’s affairs. Often family members end up having to go to court to get a guardianship or conservatorship, a much more time-consuming, difficult, and expensive process than preparing power of attorney and advance health care directives ahead of time.

Another issue related to Alzheimer’s disease is the high cost of care. In “Finding Your Feet,” part of the story was that the husband of the character with Alzheimer’s disease had to sell their house to pay for her care. In Maine, Alzheimer’s care can cost as much as $10,000 a month, and many people live with Alzheimer’s for many years. Unfortunately, Medicare usually does not cover this type of care. Medicaid often does cover institutional care for individuals with Alzheimer’s disease, but the eligibility rules can be difficult to figure out.

If you would like advice about either planning for incapacity or paying for long-term care or both, give us a call at (207) 377-6966.

New law requires financial institutions to honor Maine powers of attorney

Posted on March 6, 2010

New law requires financial institutions to honor Maine powers of attorney

Have you ever tried to transact business on behalf of an elderly or disabled relative using that person’s financial power of attorney (POA)?  Have you been told by the financial institution that it will not accept the form because it was a) signed too long ago, or b) is not on the institution’s preferred form?  This scenario can be extremely frustrating if you are trying to look after someone, paying bills and monitoring investments.  Your elderly or disabled relative may now be too incapacitated to sign a new POA on a form acceptable to the financial institution, requiring you to spend time and money getting a court order appointing you conservator. 

Hopefully, this will change as of July 1, 2010, when a new Maine law, the Uniform Power of Attorney Act, takes effect.  The purpose of the law is to make it easier to use validly executed POA’s.  Under this law, financial institutions are subject to penalties if they fail to honor powers of attorney which have been properly acknowledged (witnessed by a notary public or attorney at law):

  • Institutions may not require an additional or different POA form if the form you have grants you the authority to perform the act requested.
  • Institutions have a maximum of seven days to honor a POA. 
  • If an institution has a question of concerning the validity of the document or your authority as “agent”, the institution must, within that seven-day period, ask you to sign a “certification” of your authority, or must seek an “opinion of counsel” (letter from an attorney regarding the legality of the document).
  • Once the institution has obtained the certification or opinion of counsel, it has only five additional days to honor the document.  
  • If the institution violates these rules, and if you have to obtain a court order confirming the validity of the POA, the financial institution will be required to pay attorney’s fees and costs incurred by you to obtain that court order. 
  • (There are, however, exceptions to these rules.  An institution will not be required to honor the document or pay attorney’s fees and costs if: the institution had actual knowledge that the POA was terminated; if the institution had a good faith belief that you lack authority to perform the act requested; if the institution had a good faith belief that physical or financial abuse, neglect, exploitation or abandonment has occurred; or if it would be inconsistent with federal law to honor the document.)

Do You Need a Durable Power of Attorney?

Posted on December 15, 2009

As you get older, illness or injury may make it difficult for you to make decisions, both financial and personal. If you have a family member or friend whom you trust, you may ask that person to make decisions for you when the time comes.

There is good reason to consider signing a Durable Power of Attorney:   to name a trustworthy and capable decision maker. If you become incapacitated, then your family member or friend can take care of things for you without having to go to the time and expense of asking a court to appoint him or her  Guardian and Conservator.  Signing a simple Durable Power of Attorney, with the help of a lawyer, can make things easier.

With a General (Financial) Durable Power of Attorney, you name someone as your decision maker (called your “agent” or “attorney-in-fact”) regarding your money and property. That person will have the power to withdraw money from your banks, pay your bills, or sell or rent out or mortgage your house — everything you can do, yourself.  This Power of Attorney can take effect immediately.   Or, it can be written so that it is a “Springing” Durable Power of Attorney, taking effect later, after a doctor has stated in writing that you are incapacitated.

A Health Care Power of Attorney (also called an Advance Health Care Directive) names a decision maker to make decisions about your health care, if you are too ill or incapacitated to make your own decisions. Your decision maker can decide: what hospital you go to; who your doctor will be; whether you undergo surgery; what medicines you are given; whether you get care in your own home or in a nursing home or other facility.

Your Health Care Power of Attorney/ Advance Directive may also include a Living Will declaration, which states what types of care you receive if you are in a terminal condition. If it is your wish, you can direct that life support not be given to you under these circumstances, but that comfort measures and pain relief continue.

It is important that the decision maker you choose be trustworthy. The power of attorney gives that person lot of power, to help you or to hurt you.

If you change your mind about the power of attorney, you can revoke it, or take it back, as long as you are still of sound mind. You can name someone else as the decision maker, or you can decide you want to make all your decisions yourself.