How and When to Choose a Power of Attorney, with transcript
Kelly O’Connor is an elder care consultant and started a Senior Care Authority franchise in the Denver area and has become known as SeniorCareKelly. Prior to that, Kelly cared for older and ailing family members and was responsible for making critical healthcare and estate decisions during a time of crisis. She then dedicated her life to supporting families throughout the elder care journey. She worked in almost every area of the senior care field - independent living, assisted living, memory care, skilled nursing, hospice and home care – before starting Senior Care Authority in 2015.
Frank Samson: Welcome to Boomers Today. I'm your host, Frank Samson, of course each week we bring you important and useful information on issues facing baby boomers, their parents, and other loved ones.
I'm really excited about today's guest, who I've known for quite some time and have worked with. And I have great respect for her, her name is Kelly O'Connor. Kelly is an Elder Care Consultant and started the Senior Care Authority franchise in the Denver area and has become known in the area as Senior Care Kelly. Prior to that, Kelly cared for older and ailing family members and was responsible for making critical health care and estate decisions during a time of crisis. She then dedicated her life to supporting families throughout the elder care journey. She worked in almost every area of the senior care field, independent living, assisted living, memory care, skilled nursing, hospice and home care prior to starting Senior Care Authority in 2015. So Kelly, it's just a pleasure to have you on the Boomers Today. Thanks for joining me.
Kelly O’Connor: Well, thank you so much, Frank. I've been listening to Boomers Today for so long now, and now I get to actually talk with you and talk with all of your listeners.
Frank: That’s great. We’re going to be talking about such an important subject matter today, which the power of attorney. What is a power of attorney?
Kelly: Most people think a power of attorney is a person, and that is the first misconception. A power of attorney is actually a document. And the person who is serving as power of attorney is called the agent. The two most common types of power of attorney are the healthcare power of attorney, and the financial power of attorney. This is a document that designates the person who would be making decisions for you if you were unable to make them for yourself. I think that's the most important thing. It’s really critical because you're identifying the person who would be making decisions on behalf of your interests.
What a lot of people think is that when they sign that document, that they are giving away all of their authority to make decisions for themselves. And that is not accurate. And this is why it's really important to consult an elder law attorney or an estate planning attorney to help you set this up correctly, because some of the power of attorney documents are in effect upon signature and then others have springing criteria.
There are things that need to be met in order for that document then to be in effect. One of those would be incapacity. What we see is a lot of times, for any of us, if we're going to the hospital and having surgery and we're under anesthesia and then something were to go wrong in the surgery, or there would need to be a medical decision being made while we're under, then there needs to be someone designated to make that decision who knows what your wishes are, who knows what you would want in that situation.
I think some people are afraid that if they sign it, it means their family will think their getting old and that they shouldn't be signing these documents because then something will happen to them. They get superstitious.
Frank: A great, great point. So I have said, I don't know if you agree with this that if someone turns 18 years of age, they should have a power of attorney. Would you agree with that?
Kelly: Oh, absolutely.
Frank: And don't wait till you're going into surgery before you do it, because you never know what tomorrow will bring. Does someone need to have an attorney to set up a power of attorney?
Kelly: You don't. There's actually some templated forms online. There are companies like LegalZoom that do have forms that you can fill out. I always encourage people to look through, look at different ones. There's not a standard across the nation of what it looks like. Here in Colorado we did have the bar association put together a template. We do have a state template here in Colorado. That's not true with all of the different states, but there is one that families can use really quickly if they need to do that. I think the only time that you actually need an attorney to do it, some people just prefer to have an attorney look over a document, but if there is any specific instructions that you're wanting someone to carry out, that would need to be a customized document specifically to your wishes. And so that's really when you'll get the biggest value out of investing in an attorney.
Frank: So I think people, I think you would agree should be careful with that, it's probably, like you say, probably worth the investments of having an attorney, elder law attorney that can do it in the right way. I know you're not an attorney, but you could point them in the right direction with the proper people that do this professionally?
Kelly: Oh, absolutely. We have some amazing people that I've worked with for years that really care about doing a good job and it's interesting growing up, I always heard these negative things about attorneys. I think they sort of get a bad rap, but in the elder care and estate planning world, I've met amazing people that are truly amazing attorneys that are really advocating for their client's best interest. We have some great people here in Colorado, and it's the same with anyone that wants a referral in their state. Frank, I know that you have a great team that you've put together across the country that can help people refer to estate planning attorneys and elder law attorneys that they trust.
Frank: What would you say are maybe some of the mistakes, or maybe just advice you could give, like who should you select as your power of attorney? Should it be a family member? Should it be your best friend? Should it be, who should it be? And what are maybe some of the mistakes people make when choosing a POA?
Kelly: This is such a great question. What I see with my clients is usually it is the eldest son who is the financial power of attorney and the eldest daughter who is the medical power of attorney. That’s not what I would suggest however. I recommend you look into your life and you choose your agent according to skillset versus favoritism. So just because you like someone, we all have a favorite relative or a couple of favorite relatives, but really look at their skillset and can they make a tough decision for you on your behalf with your best interest in mind? And do they have the skillset to carry out the duties that will be asked of them?
One example is the financial power of attorney. It's not someone who writes checks. Yes, they may be writing checks for you, but they have to understand very complex conversations like how to navigate the insurance system. If someone is low income and might need to go on to the Medicaid program, are they able to understand all of those documents and concepts? Do they have a 401(k) themselves and do they know how that works? And will they be able to talk to the financial planner in an educated and informed way to be able to move money so that you are able to get the best interest. Do they understand real estate transactions? And would they be able to make those kinds of decisions for you? So it's really, I encourage people to do it skill-based especially on the financial side.
And then when it comes to the medical side, it's really looking at someone also who has the ability to understand diagnoses and medications and side effects and all the technical medical things that are involved in providing care for someone. And I always think, yes, they can say, I don't want to have CPR, or yes, I do want to have CPR, but if there are some really complex medical decisions that need to be made, and if I need someone to take me to and from the doctor's office and communicate and get documents back and forth, who has the skills to do that. I also encourage for the medical power of attorney to be someone local so that if they need to do anything for you, the financial power of attorney can be done more easily long-distance, but that medical power of attorney really has to make some decisions and does a lot of leg work in getting some of my older clients to and from the doctors.
Frank: All right. Are there pluses and minuses of having one person be both? You know almost initially I think it seems like, well, maybe it's just easier, I'm going to have my sister be my financial and medical power of attorney. Are there negatives to doing something like that?
Kelly: It’s a lot of work to be an agent for someone under power of attorney. One thing that's really important is your medical power of attorney obviously will be making medical decisions for you, but the financial power of attorney will need to pay for that. So those two individuals need to have a good working relationship or have very specific directions from you in how they should interact with each other.
I had a situation very recently where the medical power of attorney was saying to the financial power of attorney, I want my mom to have 24-hour home care. And the financial power of attorney was saying, I'm only going to pay $15 an hour. Well, the going rate for home care is much higher than that. And in some cases it could be double, it could be $30 or more an hour. So how is the medical power of attorney supposed to advocate on a medical side for a person, if the financial power of attorney won't pay for it? So those two individuals need to be able to have a great working relationship.
Frank: That's a great point. Yeah. Let’s take a moment and have you share some of your contact information. Tell our listeners how we can reach you.
Kelly: Oh, absolutely. Well, I am based here in Denver, but I do have clients all over the country. My phone number is (720) 500-2550. And my email address is email@example.com.
Frank: Right. And I know of course, you're part of the Senior Care Authority network around the country. So even if somebody isn't in the Denver area, they could call you and you could put them in touch with the right people, right?
Kelly: Oh, absolutely. We worked together all the time. We have amazing people throughout the country and we're supporting people all over and working together. And in fact, we get together every week as a team to see how we can support each other and support our clients better.
Frank: Great, great. Now, I'm going to ask you now about the power of attorney on the other end of it. What are some of the challenges that POA, that particular POA would face? And is it possible that some should consider not accepting the role?
Kelly: That is such a great question, because so many people, they take it as an honor to be asked because obviously someone trusts you enough to be asked, but do they have the time and ability to be able to serve in that capacity? What I always recommend is that people have two and maybe three people in succession on who would be their agent, because if one person is unwilling or unable to serve in that capacity, then it would just roll to the second person or the third person if need be. I think of this for a lot of my family members who have young children and if they have three teenagers and they're trying to work their job, shuffle teenagers to and from all of their extracurricular and social activities. And then all of a sudden their person has a healthcare crisis. How are they supposed to manage all of that at the same time?
I also have some of my older clients that are well into their 90s, their children are in their 70s. In one family, there's three children and two of the children have significant healthcare issues in addition to their 90-something-year-old parents. In this scenario, it would be difficult for the parents to select their children as the powers of attorney because they too are struggling with their health.
Frank: That's a good point. Now, in that same vein, are there any experiences you've had where someone did not have a power of attorney, and it was a nightmare story because of that?
Kelly: Oh, absolutely. This happens all the time. We have, there are so many clients that I meet that are in their 90s and don't have powers of attorney. When they do not have anything set up, the power of attorney actually goes to the state here in Colorado. They do a medical proxy where basically the hospital would say, who is interested in this person and everyone would come together and there would be someone designated to make that decision by proxy, but there is no legal relationship at all. And that gets really expensive because you have to go and get guardianship.
This happens a lot with my folks with dementia. As soon as there is a dementia diagnosis, that they go immediately from the doctor's office, if they can, to the estate planning attorney or to the elder law attorney, as soon as they possibly can get an appointment so that person can advocate for themselves. Just because someone has a dementia diagnosis does not mean they don't have capacity to make legal decisions for themselves, but their wishes need to be immediately documented. And I run into that all the time, that people have had a dementia diagnosis for years and there's no legal authority to act on that person's behalf. It's critical, especially in that situation.
Frank: Yeah. Yeah. I mean the one thing you don't want to have to do is have a complete stranger be making major decisions for your parent or other loved one. I mean, the fact is that even if the family members are in communication and there's good relationships, if there's no POA, guess what, you're going to have a third party making those decisions. So it's so important, it really is.
Kelly: And it's expensive too. That's what I tell my family. If you want your money to be used for your care, or you want to pass it on to any heirs or donate to charity, and you don't have these documents in place, and you have to go through the state and go through either conservatorship or guardianship, that's extremely expensive.
Frank: You know, and I have found probably the number one reason why someone did not have a power of attorney is they assumed that their spouse was automatically their power of attorney. And that's not the case, is it?
Kelly: It's not at all. They're just a next ship kin.
Frank: Right. Right. So they still, if the power of attorney is going to be the spouse, they still have to do the same paperwork, right?
Kelly: Absolutely. The tough part with spouses is that as they age, if there is only the spouse listed on the power of attorney document and that spouse is the first one to become sick, and there’s no secondary or third person on that document, then it’s essentially like having no document at all. So it's really important to have the surrogate listed and one or two if you can.
Frank: Yeah. So I know you want to talk about National Healthcare Decision Day. Talk to us a little bit about that.
Kelly: This is one of my favorite topics. I'm so grateful that you asked about it. We've all heard the phrase that nothing is certain except for death and taxes, right?
Frank: Right, right.
Kelly: And so there was a group that put together National Healthcare Decisions Day, and it's actually the day after Tax Day and so we file our taxes on April 15th and April 16th every year is National Healthcare Decisions Day. And I'm the founder of National Healthcare Decisions Day here in Colorado. And we have a national organization where we all work together. And what we do is we encourage everyone to look at their healthcare decisions documents. Look at their powers of attorney documents, look at their living will, look at all of their estate documents, look at beneficiary statements. I can tell a great story about that, but look at your beneficiary statements, on your retirement accounts and all of your life insurance policies to make sure the person is still living, to make sure the person is still in your life.
I had an ex-wife inherit $300,000, and that was not what the gentlemen would have intended, but he did not change his beneficiary statements. That’s why we encourage everyone the day after Tax Day to be able to look through all of their documents and make sure they are reflective of their current wishes. The decisions that we may make as a 30-year-old or 40-year-old and a 50-year-old may be very different than those we would make it 70, 80, and 90. So we just encourage people just as a routine to look over those documents and make sure that everyone is still in place and these are what your decisions would be.
Frank: Great. Great. So we've got a couple minutes left, Kelly. What would be kind of your wish that people would just know what to do, what every power of attorney should know? Just any advice that you could give to those listeners who are going, yeah, you know what I need to move forward, or I just became a power of attorney and these are maybe some of the things I need to know.
Kelly: I think the best advice that I can share is to get involved early and start to have some open conversations about money and about healthcare and about someone's end-of-life wishes and also their elder care wishes. You know, there's this beautiful and really sacred period of time, which is the last sort of one to three years of life. And what would they want and start to have those kinds of conversations.
None of us ever want to think about dying and none of us ever want to think about being sick, but the earlier that we can have those conversations, the more empowered the agent under power of attorney will be, and the more comfortable they will be, because so many times I get called into a hospital or into a rehab center, and I'm having to get someone really up to speed just with the basics on what is Medicare and what does Medicare cover. It's health insurance. It doesn't cover assisted living or anything like that. Just the basics to try to ease people into the conversation. And you can slowly and gently have those over time.
And that National Healthcare Decisions Day on April 16th is a great way to every year just start to have a conversation to slowly engage people in the process of being able to support you just as you intended. And you deserve that. That's the most important thing is, we deserve to have our wishes carried out throughout every day of our life.
Frank: Great. Thank you for that. Yeah. I could talk to you for a while longer, but unfortunately we're kind of out of time here, but I'd like you to share with everybody again. I know you mentioned it before, but just in case they messed it, how would people get a hold of you, via the email, a web address? Why don't you just mention that again.
Kelly: Oh, sure. Just give us a call, my phone number is (720) 500-2550. I'll repeat that again, but it's (720) 500-2550. My email address is really simple, it's firstname.lastname@example.org Senior Care Authority is all spelled out. And then my website is seniorcareauthority.com/denvermetro.
Frank: Great. Kelly O'Connor, Senior Care Authority, Senior Care Kelly, thank you for joining us on Boomers Today. Really appreciate it.
Kelly: Thanks Frank. It was such an honor.
Frank: And thank you everybody. Just be safe out there and talk to you all soon.