How to Talk to Your Family About Power of Attorney

Posted by heritagelaw on Nov 17, 2021 in Blog, Wills & Estate

No one really wants to talk about death or serious illness but the stress and discomfort of having these types of conversations are nothing compared to facing these issues without proper legal documentation put into place.

If you have an elderly family member, you’ve probably thought about whether or not they have a power of attorney – but how do you broach this topic of conversation with them?

Here is a guide that will walk you through how power of attorney works and how to talk to your family about power of attorney:

What is Power of Attorney?

A power of attorney (POA) is a legal document that gives one person the power to act for another person. The person with the power is known as the “agent” and the other person is known as the “principal”.

The agent can have full legal or limited authority to make decisions for the principal regarding property, finances, and medical care.

A power of attorney is often used in case the principal becomes ill or disabled or when the principal is unable to sign necessary documents for financial transactions.

There are six types of power of attorney:

  • Durable Power of Attorney: The agent’s authority to act on behalf of the principal continues if the principal becomes incapacitated. 
  • Non-Durable Power of Attorney: The agent’s power ends when the principal becomes incapacitated.
  • Springing Power of Attorney: The agent gets power when a specified condition is met and has no legal authority until that happens.
  • General Power of Attorney: The agent is authorized to act for the principal in all situations allowed by law (legal, financial, health, business, etc.). These POAs can be durable or non-durable.
  • Financial Power of Attorney: Limited power of attorney that gives the agent authority to act on behalf of the principal regarding specific financial matters (paying bills, making deposits, etc.).
  • Medical Power of Attorney: This allows the agent to make healthcare decisions on behalf of the principal.

Starting the Conversation About Power of Attorney

Approaching elderly family members about power of attorney should be done when they are still able to make their own decisions. However, this can sometimes be a difficult conversation to have.

Begin by offering your help when it comes to doctor’s appointments or lawyer’s appointments. This will show them that you are interested in what is happening in their life as well as create a sense of trust and understanding.

Trust is a huge factor when it comes to determining power of attorney. By showing your elderly relative that you are concerned about their well-being, you can show them that you are trustworthy to listen to their wants and needs and make decisions with their best interests at heart.

Apart from building trust, here are some other tips for talking to your family about power of attorney:

  • Use “I” statements instead of asking questions. For example, emphasize that you are willing to do what they want by saying, “Let’s talk about your plans so I can do the right thing.” 
  • Avoid placing blame. Don’t accuse your elderly relative that not being prepared or disorganized. This demonstrates that you may not have faith in their abilities and may not act according to their wishes.
  • Don’t pressure them. Having a conversation about power of attorney can be uncomfortable but it’s an important one to have. Be persistent without being pushy by gently bringing up the topic at different times. When they are ready, they will talk.
  • Help when you can. Try to help your elderly relative whenever possible, especially when it comes to medical and legal issues. 

Unless your elderly relative is initiating the conversation, talking about power of attorney can be awkward – but it has to happen before it’s too late. By building trust and demonstrating understanding, you can make the conversation as stress-free as possible.

Potential Issues: Family Disputes

Mother-in-law trying to reconcile quarrelling couple, family conflict, support

Even if you are the one showing support to your elderly relative and making the effort to help them and build trust, there may be other family members who believe they are entitled to be power of attorney. This can easily lead to family disputes.

One of the best ways to avoid this is to talk with your family and suggest that your elderly relative name more than one family member. This way, all decisions and transactions must be approved by two people instead of one.

This can help deal with distrust and decrease the likelihood of conflict. 

Otherwise, your relative can name one power of attorney but stipulate that other family members must be informed about decisions and be provided with all information.

Ultimately, if too much conflict arises from assigning a power of attorney, your relative can name a third party such as a close friend or lawyer.

What if My Family Member Can’t Make Decisions On Their Own?

In these circumstances, a family member or close friend may have the right to step in and make healthcare decisions for the relative and apply to become their guardian of property. The government will only step in if no other suitable person is available, able, and willing.

The law recognizes that, if an individual has diminished mental abilities, their capacity to make decisions may be reduced and someone else may need to make decisions for them. This person is referred to as a substitute decision-maker (SDM).

Under most provincial legislation, an SDM can be a family member, caregiver, someone chosen by the courts, or anyone chosen by the relative in advance. An SDM cannot be someone who is paid to provide care, someone who is mentally incapable, and someone who is under the age of 16.

Otherwise, a Public Guardian and Trustee can be appointed to make financial and legal decisions for your elderly relative.

Talk To Your Family About Power of Attorney

Without a power of attorney, your family member may end up having someone make decisions for them that they did not choose.

By discussing power of attorney with them and having one signed, they are protecting themselves and ensuring their affairs are handled the way they want them to be.

Once you have that conversation with your family member, get in touch with our team at Heritage Law to take care of the rest. 

We will ensure the process is taken care of thoroughly and properly.

Contact us today.