A little legal advice

[TNhobbyfarmer]

I know an online forum is probably not the best place to get legal advice, but I do think that a lot of people on here have good knowledge of many subjects, so here goes.

We are going to have to put my mother in law into either a long term care or assisted living facility. We have been told by one of the facilities we are considering that we need a power of attorney in order to sign paperwork for her. I am guessing there are power of attorney forms online for free. Will we need to go to an attorney or possibly just print one off and get the signatures notarized?

I am not a lawyer nor have I played one on TV. However, I have stayed in a Holiday Inn Express.

 

[Dadnatron]

You won't need a lawyer, but you will need to insure that the forms are signed and notarized appropriately for your State. So be sure any advice is specific to TN.

 

[mddorange]

Exactly what Dadnatron said. I have both given a Power-of-Attorney and had several for other people. It is not very complicated but has to be legal in the state you are using it in.

 

[plowhog]

A growing industry is document preparers. They can't give legal advice but can advise on how to accurately choose (hint hint) and properly fill out (hint hint) the proper forms. You might look into that as it would be less expensive than an attorney.

Having said that, the possible bad outcomes, if this is not done correctly, could bite very hard. Even if all seems well now, harmony in the family, etc I would beware. I would be double beware maybe.

If you consult an attorney, you might ask if signing (as power of attorney) also opens you up personally to legal claims, fees, costs, unpaid bills, etc. Or if that is firewalled only to the mother in law. If she is still capable of signing on her own (for such an expensive thing) that would be preferable to me. Even if you eventually do need a power of attorney.

 

[mark02tj]

You can find the forms on-line. Keep in mind that the POA paperwork must be signed by your mother in law in front of the notary. You can't just take the stuff somewhere and get it notarized.

Also, whoever is notarizing the signatures will need some sort of proof that your mother in law is who she says she is, so you'll need a current ID for her. The notary is also going to need to be convinced that your MIL is cognizant of what she's signing. So, if your MIL has any sort of dementia or confusion, a notary that doesn't know her may or may not be convinced of her (your MIL) capability to sign the POA.

An attorney will judge your MIL's ability to sign based on her "condition at the moment of signing". In other words, he can testify that at that moment that your MIL knew what she was signing. (There's a legal term for that, but I don't recall what it is right now.) The attorney will be able to also notarize the document.

Also consider getting a "health care power of attorney" and other documents that will let you make medical decisions for your MIL. A regular POA generally just covers financial/business decisions so you can access bank accounts, sell property, etc. Without the health care POA, the nursing home is within their rights to not tell you anything about her condition due to the Federal HPPA laws.

I live in a fairly small town and had the "local small town attorney" (as he refers to himself) do the POA's for my parents. Including him making a "house call" to the care facility that my parents were at, I think he charged $150 for it all.

When we decided to also add my sister as a POA, I took what the attorney did and just retyped it into Word and changed the names. I then (unknown to my sister) also created a new POA for me that gave me the right to revoke my sister's POA if necessary. Took a notary friend of mine to my parent's apartment and had them sign it all in front of her.

========================

Not my business, but how is all of the long term care being paid for? There are some places that accept Medicaid when the resident's money runs out and there are others that are private pay only. There's also a difference between assisted living and skilled care facilities. She may only need assisted living which would be 1/3 - 1/2 the cost of skilled care (typically referred to as a "nursing home"). Of course, the skilled care places will tell you that she belongs with them. But, she might be appropriate for "assisted living with rehab services". The competition among these places is fierce!!

 

[jmc]

I once used a standard form and had to hire a lawyer to straighten the deal out when the other party cancelled their check and reneged. (Weekend deal and I was out of state) That standard form did not assign responsibility for legal costs in the event of default. Not your exact situation but still, canned solutions have risks. For a cut and dried legal service, you ought to be able to call around and get quotes.

 

[California]

One point not mentioned is some places require a POA to be fresh, recent, if they are to respect it during the time MIL appears to be reasonably competent. They have a duty to protect her interests against scheming relatives.

The whole issue of incompetent elders is a snake-pit. Scheming caregivers, rivalry between potential heirs, just plain stealing. It might be a good idea to do an initial consult with an attorney to avoid the most common difficulties that would be hard to resolve later.

And an unsolicited tip: Mom remained competent so that wasn't an issue. but when her caregiver costs exceeded her income we looked at a reverse mortgage on her house and determined that wasn't a reasonable solution. $13k in costs taken off the value of the house just for signing, and at age 98 this wouldn't be spread across very many years.

We then learned of the HELOC, Homeowners Line of Credit, type of loan. Initially invented for home remodel, then before the loan market crash it was pushed to anyone. The advantage is minimal upfront costs and you only draw what you need whenever you need it. When the loan market crashed our adjustable loan rate fell from 6.5% to 1.5%, near free for the few thousand $ we actually used from the loan. And no pressure to sell the house immediately when Mom was gone. So long as the (small) payments were kept current the bank didn't care if the loan ran until the house was sold. In contrast, I think a Reverse Mortgage has conditions that the resident loses possession of the house if they are unable to occupy it for a year - a much harsher condition. And heirs lose any appreciation in value between signing and eventual sale.

BTDT - parents, and helped with inlaws. Finally, a distant relative had named me Executor to settle a Trust that was poorly written 40 years ago. I declined that one, let a cousin feel the misery.

 

[comancheflight]

We have had to use an attorney twice in 3 years but both parents had a will and trust. Much easier BUT I did learn you can go to an attorney for an initial consult for free. They can at least start you in the right direction and give options.

After executing my mother's trust I always thought you assigned to the most trustworthy family member. NOPE - it's the one you least like....

 

[California]

After executing my mother's trust I always thought you assigned to the most trustworthy family member. NOPE - it's the one you least like....

I discussed that with the Trust/Wills attorney who helped me unravel a couple of family messes. She said never do that, she had seen it countless times and they all ended up as disasters where generally she made more in attorney fees than any individual heir received. This is because a person unwilling to serve, or incompetent, needs to be prodded by (expensive) attorney efforts initiated by the other impatient heirs to get each step of the process initiated. Imagine telling the unlucky Executor that they have to administer a yard sale and get the house cleared out. Good luck. Likely only legal action would get them moving. Slowly.

 

[Rustyiron]

We have been told by one of the facilities we are considering that we need a power of attorney in order to sign paperwork for her.

I'd bet they have the forms right there and are well familiarized with the proper completion as well as having a notary if needed.