A Power of Attorney (POA) is a legal document that is voluntarily signed by your loved one who has Down Syndrome (making them the “principal”) that gives you the power to make some or all decisions for them (this makes you the “agent” or “attorney in fact”). Sounds good, right? You and your loved one working together to make the best decisions for their life. Please note that your loved one has to understand what it means to sign a contract to be able to use a POA. Therefore, the Attorney preparing the POA will have to interview your loved one and take copious notes. Also, a professional may be called in to assess the capacity of your loved one to make their own decisions.
Ok, so what is a Durable Power of Attorney (DPOA) and how is it different from a Power of Attorney? Well, in most places the POA terminates when your loved one becomes incapacitated and can no longer make decisions for themselves, but if the POA was made “durable”, then it was designated to last for the lifetime of your loved one, unless your loved one cancels it. Thus, you can see the benefit to attaining a DPOA, as opposed to a POA.
Benefits of a Durable Power of Attorney
- You do not have to go to court for the document to be legal. Instead, this legal document can be signed before a notary republic or witnesses or both.
- Your loved one with DS gets to chose who they want to make decisions for them, instead of someone else making that choice for them.
- Your loved one can change their mind and cancel the DPOA at any time
- Your loved one is not giving away their right to make decisions when they can and when they want to, instead they are appointing someone to be available to make decisions when they can’t and when they don’t want to make these decisions (e.g. medical, educational or financial).
How Long does a Durable Power of Attorney Lasts?
Depending on where you live, the DPOA will last:
- Until your loved one with DS cancels it;
- For the lifetime of your loved one;
- Until your authority has been terminated by the courts and the power of attorney does not provide for a replacement; or
- A guardian is appointed for your loved one with DS.
Types of Durable Power of Attorney
DPOAs can be limited or general, but in either case the responsibilities of the agent must be spelled out. Your loved one cannot just state “I declare such person to make all decisions for my life. The End.”.
As you may have guessed, a limited DPOA will give you the authority to make decisions limited to certain events or certain life areas such as healthcare, education or finances.
A general DPOA will give you authority to make decisions for your loved one in all areas, as allowed by your local and national laws. This may include giving you the authority to handle bank accounts for your loved one, manage assets, sign checks, sell property, file taxes, etc.
Educational Power of Attorney
Yes, you read that right. You do not have to be your loved one’s Guardian to make educational decisions for them once they become an adult. Thus, the school does not have to kick you out of your loved one’s meetings, citing you no longer have the authority to make decisions for them. An Educational Power of Attorney will reopen the doors to those meetings for you.
Durable Power of Attorney for Healthcare
Sometimes called a Healthcare Power of Attorney (HCPA) or a Healthcare Proxy, this allows you to make health related decisions for your loved one who has Down Syndrome. Depending on where you live, in addition to “agent” and “attorney-in-fact”, you may be called a “health care proxy” or a “health care surrogate“.
As the health care proxy, you are legally required to follow your loved one’s wishes to the extent that you are aware of them. You are expected to work with doctors and other healthcare providers to ensure that your loved one gets the medical care that they want.
To make things easier, it is recommended that your loved one creates what is called a “health care declaration” or “living will” to provide written instructions about their wishes in terms of medical care. Depending on where you live, you may see that the DPOA for healthcare and the “living will” are combined on a single form called an “Advance Health Care Directive”.
Durable Power of Attorney for Finances
This allows you to handle financial transactions on the behalf of your loved one who has Down Syndrome. This can include all or some of the following:
- operating your loved one’s small business,
- using your loved one’s assets to pay for their everyday expenses,
- filing and paying your loved one’s taxes,
- buying, selling, maintaining, paying taxes on, and mortgaging your loved one’s real estate and other property,
- buying and selling insurance policies and annuities for your loved one,
- handling transactions with banks and other financial institutions for your loved one,
- investing your loved one’s money in stocks, bonds, and mutual funds,
- claiming property your loved one inherits or is otherwise entitled to,
- collecting government benefits for your loved one,
- transferring property to a trust for your loved one, and
- hiring someone to represent your loved one in court.
Please note that you are required to:
- keep your property separate from your loved one’s,
- maintain accurate records,
- act in the best interest of your loved one,
- and avoid conflicts of interest.
When Choosing Durable Power of Attorney
Consider the following:
- Speak with your loved one and ensure that they have the capacity to use a DPOA.
- Have separate documents for financial and medical DPOAs. Oftentimes you have to present the DPOA to different institutions and professionals to prove that you have the authority to act on behalf of your loved one. Thus, the persons dealing with the finances of your loved one do not need to see and know your lived one’s medical information. Similarly, the professionals dealing with your loved one’s health care do not need to know your loved one’s financial information.
- If possible, have one family member/friend be the agent dealing with the finances and another family member/friend deal with the healthcare decisions. It can be a lot for one person to be in charge of making both medical and financial decisions, thus if you have the support from family and friends, spread the responsibilities across so that one person does not become overwhelmed.
- Ensure that the DPOA is prepared by an experienced Attorney and it is as customized as possible to fit your unique family situation. Remember that laws differ by location, therefore you want to ensure that you are making the best use of the rights available to you and your loved one according to the laws of the land.
- Ensure that your family’s Future Planning Team is kept informed on all matters relating to the DPOA. If everyone is kept informed, then no one will feel left out, or as if information is being deliberately withheld from them. This reduces the chance of strife within the family.
We at HappyDowns wish you and your family all the best as you plan for the future.