My husband has dementia. He has some very good and lucid days. Yet there are times when he becomes confused. I have a signed a durable Power Of Attorney that we had done in 2009. One of my friends told me that my POA is “null and void” because the laws have changed. Is she right? And if so, what should I do?
— Lorraine G., Palm Beach, FLA
Your friend is partially correct. Prior to 2011, the Durable Power Of Attorney (POA) document simply had to state that your husband grants you the authority to make financial and other decisions on his behalf if and when he becomes too incapacitated to handle his own affairs. In 2011 a new law went into effect requiring each category that you are given POA over, such as directing his medical care or making financial decisions, to be enumerated and signed by your husband.
Power of Attorney documents executed before 2011 are supposed to be grandfathered in. But, even so, it’s a good idea to redo the POA so it reflects current law, advises Ben Neiburger, an elder law attorney at Generation Law in Chicago, generationlaw.com. He told me in an email that “there’s always a chance that employees at banks or other financial institutions could claim that older POAs are not valid. While they are wrong, it’s sometimes hard to fight against what they say or what their legal departments incorrectly tell them.”
I agree with his advice. Do what you can now to avoid a potentially contentious situation later.
Here are the steps you’ll need to take: first, if your husband’s physician agrees that he is competent to make these changes to your POA now, ask him to write a letter to that effect and give it to your attorney who will draft a new version. Your husband will have to sign the new POA with two witnesses.
There will be a fee, of course, to redo this important document. But Neiburger advises readers not to take a do-it-yourself approach; “If a new POA form is completed incorrectly (and the form revokes the prior POA), neither version – old or new – will be valid and the disabled person will be unprotected.”
While you’re focused on this and talking with your attorney, it’s probably a good time to examine your other estate documents such as medical proxies and other trusts if you have them. I also highly recommend sharing and reviewing these documents with your adult children.