Power of Attorney: Don’t Wait Too Late

senior elder law

by: Alyson C. Fudge, Esq. 

It just happened again. Yet another well-meaning adult child calling to ask about getting Powers of Attorney for his father who was diagnosed with Dementia several years ago, and now is unable to live on his own or manage his own affairs. And yet again, I have to be the bearer of bad news: it is too late to have Powers of Attorney signed.

We need to file a guardianship action in Court so a Judge can decide who is going to be making decisions for Dad. A person cannot wait until he is unable to manage his affairs because of dementia or any other cognitive impairment to sign a legal document in which he chooses who will help him when he is no longer able to manage his affairs because of dementia or any other cognitive impairment.

As I explain nearly every single time I speak to support groups, churches, attorneys, nurses, social workers, caregivers, or any other individuals or organizations who take care of or offer services to seniors, that would be the equivalent of waiting until your house is burning and smoke is pouring out of the windows to decide it is now time to purchase your homeowner’s insurance. Documents that concern “planning ahead” are meant to be prepared and signed before something bad happens—not after.

Planning is different than reacting.

In order to help individuals decide who will be able to talk to doctors, consent to medical treatment and make end of life decisions on behalf of another individual, our State Legislature in Columbia wrote our official South Carolina Health Care Power of Attorney. As attorneys, we cannot change or rewrite it. Our State Legislature was so determined to make this document freely available to the public that they put the entire document, word for word, in the actual SC Code of Laws.

If you have internet access, one (of many) link to the South Carolina Health Care Power of Attorney is: http://aging.sc.gov/SiteCollectionDocuments/S/SCHealthCarePowerOfAttorney.pdf

Now please keep in mind that is the Health Care Power of Attorney only—it is not the same document as a Durable Power of Attorney which allows you to name the person of your choice to manage your finances, real estate, apply for government benefits, etc. if you are in need of assistance. Each individual needs to have Both a Health Care Power of Attorney and a Durable Power of Attorney.

They are not the same document and they address different issues. Durable Powers of Attorneys are prepared by attorneys and vary greatly from attorney to attorney depending upon the attorney’s expertise and area of practice. Just as you would not go see a foot doctor if you have a brain tumor, it is important to remember that the practice of law is not the one-attorney-fits-all kind of world it used to be.

As our laws have become more and more complex, we, as attorneys, have become increasingly focused with respect to our areas of practice. Having a Durable Power of Attorney which is improperly executed, or too generic or insufficient to address the needs of aging individuals, is very similar to not having one at all. It is also a great way to ensure that your family ends up in front of a Judge instead of being able to quickly and efficiently provide you with the help that you need.

Please consult with an Elder Law Attorney for information regarding your specific needs. You are your own best Advocate, and your family will thank you for planning ahead so that they do not have to react to a crisis. I will also thank you, as I do not relish being the bearer of bad news.

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