Avoid Common Power of Attorney Problems with Determining Capacity

power of attorney problems

A POA helps families avoid problems

Planning ahead and putting a durable power of attorney into place before it’s needed saves families from legal struggles during a healthcare crisis or financial emergency.

A power of attorney is a legal document that lets your older adult choose someone to act in their place when they’re no longer able to manage their own affairs. As your senior’s chosen representative, you could legally make decisions on their behalf, pay their bills, manage their investments, or direct their medical care.


Doctors get involved in POAs too

Dr. Leslie Kernisan, a San Francisco geriatrician, recently wrote about the importance of avoiding common power of attorney problems.

It’s important to hear a doctor’s perspective because they’re often the ones who determine if an older adult is no longer capable of making their own decisions — meaning, they’ve become incapacitated. That’s usually the key to activating a POA.


Geriatrician warns of problems determining incapacity

Dr. Kernisan noticed that many standard POA forms have unclear statements about when or how someone will be deemed incapacitated.

She also tells a story about an older woman who was cognitively impaired during a hospital visit. In that time, her POA agent took over and moved her to a facility. A few months later, the woman had recovered and was unhappy with the move, but had already lost her decision-making power.

Dr. Kernisan points out some common issues with determining capacity for POA:

  • Capacity can be temporarily or permanently impaired. POA forms usually don’t address this and can lead to situations like in the story above.
  • Most doctors aren’t trained to evaluate long-term capacity in seniors. POA forms usually don’t specify what qualifications the doctors need to have or what proof of incapacity they should provide.
  • POA forms assume the doctor who makes the capacity determination is one who knows the person well, but that’s not always true. The POA wording usually allows any doctor, even one they’ve just met, to make the determination.


Bottom line

Dr. Kernisan points out a key flaw in most standard POA forms – how capacity is determined and by who. Even though this issue exists, she still agrees that it’s far better for seniors to have a POA than to have nothing that allows others to step in and help when needed.

To create a POA that properly protects your older adult, it’s best to talk with a reputable and experienced elder law attorney. They can help make sure the POA will be used appropriately to help your senior and save your family from unnecessary grief and expense.


Next Step  Read Dr. Kernisan’s full article at Geriatrics for Caregivers


You might also like:
What is a Power of Attorney and Why Do Seniors Need One?
How to Find an Elder Law Attorney You Can Trust
Convince Stubborn Seniors to Sign a Power of Attorney


By DailyCaring Editorial Staff
Image: MMC-News


  • Reply June 11, 2018


    Do you have an article or tips about how an individual should start a conversation with family members when it comes choosing your POA? Aside from legal implications, there are a lot of family dynamic issues to take into account too.

  • Reply October 30, 2016

    Marathon John D Gaffney

    I want to know what my LEGAL RIGHTS R as a CAREGIVER OVER someone who s a POA;Im sacrificing MY LIFE to take care of my mom;I stepped-up to the plate to care for MY MOM & I’m not even being compensated for doing it;Caregiving s a 24/7 unappreciated job that comes with a lot of b******t/aggravation/stress/patience;I deserve to b compensated for my time!!! Nobody can DO my job!!!

    • Reply October 30, 2016


      Caregiving is a tough job. From your level of frustration, it sounds like you might need to make a change in your situation. Please talk with available family members, get support from good friends, attend a caregiver support group, get counseling, get help from a social worker, or speak with someone in a faith community you belong to. It’s important to find ways to get support for the emotional, physical, and financial stress of caregiving. There are a variety of free sources of support that you can take advantage of. A good place to start is by asking your local Area Agency on Aging — get more info about that here: http://dailycaring.com/local-community-resources-for-seniors-and-caregivers-area-agency-on-aging/

      Being compensated privately would usually be an agreement between you and your older adult or other family members. There are public programs that do compensate caregivers as well. In Home Supportive Services (IHSS) is a Medicaid program that can pay family caregivers for the care they provide. These programs are run at the county level, so you would need to start with your county’s Area Agency on Aging.

  • Reply October 30, 2016

    Marathon John D Gaffney

    What R My LEGAL RIGHTS as a caregiver over a POA!!!

    • Reply October 30, 2016


      In general a POA for business gives you the ability to make decisions and transact business on behalf of your older adult. A POA for healthcare does the same, for medical decisions. But if you have specific questions about your older adult’s POA, it’s always best to contact a reputable attorney. An elder law attorney typically has even more experience in these types of situations.

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