Advance directives — including living wills and, if desired, Do-Not-Resuscitate (DNR) orders — for our senior loved ones and even family caregivers are very important, we believe.
Making end of life wishes clear is crucial, both for each individual and their family members. It’s also vital to designate who will look out for your interests and desires when the time comes to assure your wishes are honored.
It doesn’t end when you’ve done that, though…
Power of Attorney Holder
Your senior loved one has done what is needed and selected people trusted to honor their final wishes and assure they are carried out for your senior when she or he no longer can speak for themselves.
Fast forward five to ten years (or more) in the future and the holder of the power of attorney, the one charged with seeing that your senior loved one’s final wishes are followed, is now incompetent to carry out that role and may even be causing trouble due to their incompetence.
- Who should be informed?
- What steps need to be taken legally to have that person removed as holder of the power of attorney (agent) before they cause harm through their actions?
- Who should be chosen as a replacement?
- What do you do now?
Usually the power of attorney and any legal considerations of advance directives vary from state to state, so check with your own attorney to be sure that any changes are handled according to the laws in your state.
Incompetent to Serve – Options for Caregivers
When someone becomes incompetent to perform a duty it means that they, possibly due to an accident or medical condition, can no longer serve or make decisions for someone else, such as for your senior loved one. They are unable to make decisions for the principal, your senior loved one, and probably themselves. If your senior’s agent becomes incompetent, they could make decisions regarding healthcare or finances that are not in your senior’s interests or contrary to what was set forth as your senior’s wishes.
In many instances an alternate power of attorney or agent is named in the event that the primary person is unable to serve, whether from their own incompetence, because they choose to no longer be involved or if they are not available. Your senior loved one may have selected more than one person. In this case, the alternate person would be in charge.
Your senior can also designate more than one person and stipulate that these agents must act together, needing approval of each person to carry out any decisions. This will mean that one who becomes incompetent can’t make decisions against your stated wishes without the approval of those who are competent to act on your behalf.
If alternate agents are named but are now all unable or incompetent to serve as decision maker when the time comes, a guardian can be appointed to oversee the wishes of your senior loved one. The guardian will be appointed by a court. The court can hear testimony about the wishes of your senior loved one to be sure their choices are being followed.
Early Action Best When Possible
Before your senior becomes incapacitated, if they feel that their agent is incompetent they can revoke the power of attorney and designate another to take over the duties. The agent, who is thought to be incompetent, should be notified in writing of your senior’s desire to remove them from the advance directive. Please note that the process varies from state to state but most require this written notification.
It is important to inform anyone with whom your senior has done business – financially or medically – of the change in agent and provide copies of your senior’s revised advance directives so that their file can be updated with the changes.
If your senior loved one is not of sound mind in order to revoke an incompetent agent, family members can go to court and request that a judge put restrictions in place to limit the agent’s power over your senior’s affairs. The court can force the agent to show how money was spent or decisions made. It can also appoint another agent or guardian to oversee your senior’s wishes.
Unfortunately this often isn’t considered until the power of attorney holder is needed. It can become more problematic when decisions need to be made and agents can’t make them as making changes to an existing power of attorney can take some time.
Being aware of potential pitfalls and planning ahead for them by setting up alternate agents or a group of agents may make things easier for family caregivers as the future unfolds.
Have you experienced this problem and how did you handle it? We would love for you to share your story.
(Note: This discussion is meant to inform family caregivers and start an important thought process but is not legal advice. Family caregivers should strongly consider engaging the services of an Elder Law Attorney to assure their rights – and especially those of their senior loved one – are adequately protected.)