Power of Attorney: Planning for Incapacity

Powers of attorney let you plan for your incapacity.
A power of attorney names a person to make decisions for you under rules that you establish, and ensures someone can handle your affairs if you cannot.

Without a durable power of attorney, helping a family member or loved one who cannot act on their own becomes far more difficult and stressful. Powers of attorney, also known as POAs, typically give the agent specific powers to conduct the principal’s (person creating the power of attorney) financial business, explains the Aiken Standard in the article “The durable power of attorney.”

For financial powers of attorney, there are different types, including non-durable, springing and durable. A non-durable POA is time limited.  It either expires at the end of a set amount of time or upon the death or incapacity of the principal.  Non-durable powers of attorney are typically used for specific circumstances, such as real estate closings or for transferring car titles.

The durable power of attorney is in effect from the moment it is executed. It is not revoked if the person becomes incapacitated (hence the term “durable”), nor by the passage of time. The person can alter or terminate a durable POA at any time before he or she lacks capacity, however, and it does end when the person dies.

Springing powers of attorney become effective at a future date. They “spring” into power, according to the terms of the document. That may be the occurrence of a particular event, like the person becoming incapacitated or disabled. They can be problematic, as there will be a need to prove that the person has become incapacitated and/or disabled.

The advantage of the durable power of attorney is that it remains in effect even after the person has become impaired. You can choose to let your agent act right away or make it springing as described above.  It is often prudent to make them effective immediately so that if time is of the essence (i.e., there is an emergency that requires quick action), there is no need to prove incapacity or that a condition has occurred.

In addition to a financial POAs, there’s also a healthcare power of attorney, which is a separate document that gives the named person the authority to make medical decisions when the principal is not able to do so.  There are also several other documents which plan for incapacity, such as living wills and HIPAA releases, which should be considered as well.

In Texas, powers of attorney rules are strict, so how they are drafted is very specific.  They provide for many powers or restrictions to the agent which the principal should consider when preparing a power of attorney, such as whether his or her agent should be compensated, whether the agent can make gifts and naming successor agents if the first cannot serve.

Power of attorney documents should be created and executed, along with a complete estate plan, long before an individual begins having problems in aspects of their lives.  These documents are essential as part of planning for incapacity.  See my past article for more detailed information.  https://galligan-law.com/estate-planning-when-faced-with-a-serious-illness/

When they are signed, it is necessary for the person to have mental capacity. They have to be able to be “of sound mind.” If they have been diagnosed with dementia or Alzheimer’s, it is necessary that all these documents be prepared as soon as possible.

Without a durable power of attorney, family and friends won’t be able to make important financial decisions, pay bills, make healthcare decisions and engage in any kind of Medicaid planning. If a person does not create a power of attorney and then suffers a health problem which makes them unable to handle their own affairs, anyone who wanted to take on any of these responsibilities would have to go to court and be appointed the person’s guardian. It’s much easier to tackle these tasks in advance, so that the family can act on their loved one’s behalf in a timely and effective manner.

Reference: Aiken Standard (August 24, 2019) “The durable power of attorney”

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Scam Alert: Is It Real or a Robocall?

Robocallers target seniors with phone scams
Robocallers target seniors with phone scams.

AARP recently put out an alert to seniors with advice on how not to fall for robocall scams. Robocalls are a daily annoyance at best and, at worst, a way for criminals to wipe out your savings. Law enforcement officials working on catching these crooks face daunting challenges because telephone scammers are highly organized and operate out of many different countries. However, there are some key phrases and tactics these con artists use. This information can help you answer the question: Is it a robocall?

Experts advise people not to answer any phone call, if you do not recognize the number of the caller. This advice used to be more useful before the scammers found ways to hijack Caller ID and mask their calls, as coming from people or organizations you know or trust.

The scams tend to follow certain patterns, depending on the type of fraud the crooks are trying to perpetrate. Here are some examples:

Social Security Scam

You might get a phone call in which the caller tells you that someone has stolen your Social Security number and is using your number to commit crimes. This is a scam. The Social Security Administration notifies people of essential information by regular mail, not by calling people on the phone.

The caller will try to get you to give private information. Again, this is a scam. The Social Security Administration does not call people and ask for personal information.

These callers often threaten people that there is a warrant for their arrest and the only way to keep from getting arrested and thrown into jail, is to give them the personal information they want. Only con artists make these threats. The Social Security Administration does not call people and threaten to arrest them and throw them into jail.

For your peace of mind: if you get a call like this, hang up right away, then contact your local Social Security office to make sure that there are no issues with your Social Security number. If you make the call to the Social Security office yourself, you will know you are talking to the right people.

Jury Duty Scam

You get a phone call from someone pretending to work at the police department or sheriff’s office. The caller accuses you of missing jury duty and says that there is a warrant for your arrest. You must pay a fine to people who pretend to be the police.

This is a scam. Jury duty notifications are by mail, not by phone. Courts also do not telephone people to demand payments. Courts send notices of fines by mail. The police and sheriff’s department do not call people to collect fine payments.

If someone calls you with this scheme, hang up right away. For your peace of mind: Contact the jury administrator of your county, city or local federal courts to see if you missed jury duty.

These scam artists prey on your fear of getting arrested, even when you know you did nothing wrong. The fraudsters will bully, harass, and threaten you to try to steal your money. You cannot talk them out of what they are doing or get them to admit that they are committing a crime. Your best option is to hang up immediately, then contact the relevant legitimate government agency to verify that what the caller said was false.

References:

AARP. “How to Recognize a Robocall.” (accessed May 2, 2019) https://www.aarp.org/money/scams-fraud/info-2019/recognize-a-robocall.html

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Should Elder Care Benefits Be Part of Employees’ Compensation?

More young and middle-aged workers find themselves in the role of family caregiver.
More young and middle-aged workers find themselves in the role of family caregiver.

As employees’ parents and family members grow older, many young and middle- aged employees are asked to be caregivers. More than one in six Americans working full-time or part-time report assisting with the care of an elderly or disabled family member, relative or friend. Of this group, nearly 50% say they have no choice about taking on these responsibilities. That’s why many struggle in silence, deciding not to share their situation with employers out of fear for the impact on their career or a desire for privacy.

Benefits Pro reports in the article “Elder care benefits: A growing need for the U.S. workforce” that under the federal Family and Medical Leave Act (FMLA), “family leave for seriously ill family members” is required by law. However, the law offers unpaid job protection and the definition of family member is restricted to spouse, child or parent. This has resulted in an increase in demand for elder care benefits. There are a variety of options that businesses can offer.

Many employers now offer an employee assistance program (EAP), which provides employees and household members with educational and referral services for elder care. These services often include free and confidential assessments, short-term counseling, referrals and follow-up services. These EAPs also address a broad body of mental and emotional well-being issues, like alcohol and substance abuse, stress, grief, family problems and psychological disorders.

In addition, some employers also have Dependent Care Assistance Plans (DCAP), commonly referred to as the “day care benefit,” allowing employees to set aside tax-free dollars for qualified elder care. While DCAPs don’t cover the entire cost of elder care, they can provide up to $5,000 per calendar year in assistance and lessen employees’ federal tax burden.

Respite care provides short-term relief for primary caregivers and can be arranged for just an afternoon or for several days.

Caregiving has shown to reduce employee work productivity by 18.5% and increase the likelihood of employees leaving the workplace. Offering elder care benefits to employees can help with retention and efficiency, as well as with businesses’ bottom line. A study by the Center for American Progress found that turnover costs are often estimated to be 100 to 300% of the base salary of the replaced employee.

As the demand for these benefits continues to increase, employers are recognizing the diverse needs of their workforce and are creating programs that have benefits to help at all stages of life.

Learn more about what health care documents a caregiver needs to be able to make medical decisions for an elderly or disabled family member.

Reference: Benefits Pro (April 30, 2019) “Elder care benefits: A growing need for the U.S. workforce”

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