February 16, 2023

The best reason to set up a power of attorney for yourself or an elderly family member is to avoid a far more contentious and expensive alternative later: guardianship.

Jonathan Williams

A power of attorney becomes urgent if an elderly family member is showing early signs of dementia. “You want to run, not walk, to get that done because capacity tends not to get better,” said Jonathan Williams, an attorney with the Clarity Legal Group in the Raleigh-Durham, N.C., area.

“Having good legal documents in place, if the person has the ability to execute them, can be helpful later on,” he said.

In a power of attorney, the person signing the document agrees to name an agent, usually a trusted family member or caregiver, who can take care of legal and financial matters in the event she can no longer do so herself. A power of attorney does not put any constraints on what the signer is currently able to do. She can continue to write checks, enter into real estate transactions, and make investment decisions.

During a recent webinar sponsored by the Duke Dementia Family Support Program, Williams explained some of the legal “gray areas” that can crop up around powers of attorney.

Even if someone is showing cognitive decline, a power of attorney may still be possible if an attorney “can be convinced in a conversation that the person we’re working with has an adequate understanding of the consequences of their signing it, even if that understanding is later lost or forgotten,” he said.

“Just because someone has been diagnosed with a cognitive impairment doesn’t mean they lack the legal capacity to act for themselves.” In this case, the attorney might have to consult with the person’s medical provider or review medical records before deciding what to do about a power of attorney.

But convincing an attorney in these situations isn’t a sure bet, and time is of the essence. Once someone becomes fully incapacitated, the only option may be guardianship, which Williams called a “blunt force tool with a lot of collateral effects.” …Learn More

Field Work

November 4, 2021

If you need help managing your finances in old age, it’s a lot of work to find someone – and not a very pleasant task to think about.

But it’s crucial that retirees plan for this. As to when or whether you might need help, it really depends on your individual circumstance.

Attorney and researcher Naomi Karp cites a variety of studies that provide some clues to the different ways this process can play out. People who develop dementia obviously need what she calls a financial advocate. This might be a trusted friend, family member, lawyer or professional financial adviser.

But roughly a third of aging Americans who are experiencing natural cognitive decline are prone to making poor decisions about their money, she explained during a recent webinar sponsored by the federal Consumer Financial Protection Bureau (CFPB) where she used to work.

Financial acumen actually peaks well before retirement – at 53! – but wisdom makes up for some of that, she said. During one’s 70s and 80s, financial literacy declines, but unfortunately confidence about one’s abilities remains high. “That’s a risky situation,” Karp said.

She and other financial experts have put together an interactive website – the Thinking Ahead Roadmap – with six steps to follow to find an advocate. Each step has tips, tools, and information to guide you through the process. An adult child or caregiver could also use this website if they feel the need to assume more responsibility for an elderly parent’s finances. …Learn More

Field Work

October 19, 2021

Hiring an attorney or other representative seems to be helping workers who apply for federal disability insurance.

Legal representation dramatically increases the chances that individuals with disabilities will be awarded benefits at the initial level of review of their applications filed with the U.S. Social Security Administration (SSA), new research finds.

Hiring an attorney has been common when applicants appeal an initial denial to an administrative law judge. What’s new is that they are increasingly getting help earlier – when they first file the application – from an attorney or, in some cases, another representative who has passed an SSA test on the agency’s administrative procedures.

But disability experts have debated the value of representatives amid concerns about unscrupulous practices, such as beefing up their fees by dragging out the application process. SSA pays representatives 25 percent of a client’s back benefits that accrue while he or she awaits a decision – up to a $6,000 maximum fee.

This study – the first to examine attorney effectiveness – finds justification for paying the fees. Attorneys increase the share of applicants who are awarded benefits at the initial level of review from a third to more than half, according to the analysis of SSA data for applicants who received an initial decision between 2010 and 2014.

Hiring a representative “leads to earlier disability awards to individuals who would otherwise be awarded benefits only on appeal,” the researchers said. …Learn More