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When a Family Caregiver Does Not Have Authority to Act for Their Parents

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As millions of Americans are well aware, caring for aging or ailing parents is seldom easy. It is especially difficult when you have your own family and a part-time or full-time job. If you lack the ability to make important financial and healthcare decisions for your mom and dad, however, this can make caring for them even harder. Fortunately, when you work with an elder law attorney who is trained to handle these sensitive issues, you may have options.

You may want to start by obtaining the legal authority to make financial and healthcare decisions for your parents. The ability to make financial and healthcare decisions for ill or aging parents is obtained through the creation of certain legal documents within their estate plan. In each case, the person who creates the document is known as the principal. The principal can name someone to make financial, health care, or long-term care decisions for him or her if incapacity or illness renders that person incapable of doing so. For example, your parent could create a durable power of attorney and could name you as the agent.

In this context it is important to note that the estate planning documents are only valid if the person who created them was legally capable of doing so at the time. On a similar note, the principal has the right to change or revoke a power of attorney whenever he or she wishes, with one important caveat. A person must be mentally competent in order to change any aspect of or revoke a power of attorney.

An agent under power of attorney is legally obligated to act in the principal’s best interest. If you have reason to believe that he or she is not doing so, you may want to get involved. Assuming one of your parents is the principal and that his or her mental faculties are still intact, the first step would be to talk to your parent. As the principal, he or she can take action to remove or change the named agent with his or her attorney.

If the principal cannot or will not remove the agent in question, however, the next step would be to meet with your elder law attorney. He or she can advise you on your rights and what can be done. He or she may be able to speak with the agent about your concerns. If the agent refuses to step aside, and there are actions that are harming all involved, you may have to seek court intervention.

Of course, no one wants it to come to that. By planning ahead of time for your parents’ estate and long-term care planning needs, we can create an environment for your whole family to thrive in, despite the challenges of aging.

If you are a family caregiver with questions or concerns, we may be able to help. To learn how, call our office to schedule an appointment with us now, or anytime in the future.

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