Does Power of Attorney take all power from the patient?

1 answer | Last updated: Sep 14, 2016
Nikki-totally-stressed-out asked...

My mother has recently come to live with my family, she is disabled and needs constant help. She does not want to give me Power of Attorney because she feels that she will be giving up all of her rights to decide - Is this true?

Expert Answers

Frederick Hertz is a lawyer, mediator and author based in Oakland, California whose work focuses on property co-ownership and financial relationships between siblings, families, spouses and domestic partners, business partners, friends, and unmarried couples. He provides both transaction and negotiation counsel and also serves as a mediator and arbitrator in these areas.

The answer to your question depends on the type of power of attorney, and the laws of your particular state. Some powers of attorney only take effect after the principal is incompetent or unconscious, and others are only in effect while the principal is competent - but unable to sign a document because they are out of town. But in either case, the power of attorney gives the attorney-in-fact a great deal of power, and this does remove the complete control from the principal. So, from that perspective your mom is partially correct. The best solution is to craft a specific power of attorney, that is limited to certain areas of decision-making, and specifies whether it is in effect now, or only later on. My suggestion is that your mom should consult with her own attorney, without you in the room, so that she can figure out what is best for her in these particular circumstances.