Dear Jonathan: A few years back my mother told me that she had named me as her agent under her financial durable power of attorney. Currently she is in pretty decent health, but is starting to get a little forgetful and is no longer driving. For those reasons, she has asked me to take over all of her financial activities, i.e., paying bills, doing banking, etc. I took her power of attorney to the bank to let them know who I was and that going forward I would be handling all of my mother’s banking on her behalf. Their response was that I would not be able to act on behalf of my mother until I produced a doctor’s letter indicating that my mother was no longer competent. I don’t understand. I thought that this financial durable power of attorney was drafted specifically to allow me to act for my mother, whether she was incompetent or not. Could you please shed some light on this?

Jonathan Says: There are two types of durable power of attorneys for financial matters which can be prepared. One is designed to take effect immediately, regardless of whether the principal, i.e., the person who created the document, has capacity or not. The second type is known as a “springing” durable power of attorney and is designed to only to take effect upon the principal’s disability, i.e., inability to act on his or her own behalf.

Based on your question, it appears that the type of durable power of attorney your mother created was a springing durable power of attorney, which means you have no authority to act as her agent until she has been determined by one or more doctors to be disabled. You should review the power of attorney and look for a provision that addresses how your mother’s incompetence is to be determined. Assuming the power of attorney that your mother created is in fact a springing durable power of attorney, and she wants you to begin acting for her now while she still has capacity, I suggest that she go back to the attorney who prepared her durable power of attorney and have the attorney prepare a new one which allows you to act immediately on her behalf. Good luck.

Dear Jonathan: I have been acting on behalf of my father pursuant to the authority given to me under his financial durable power of attorney which allows me to act even though my father is not disabled. Although he is still pretty sharp, he does have some memory lapses and a couple years ago he asked me if I could help him with his bill paying which over time has turned into my taking care of all his finances on his behalf.

I have also been named as his patient advocate under his health care durable power of attorney and he has a medical procedure coming up. The problem is that we are not totally in agreement as to the efficacy of having that medical procedure done. As his patient advocate, do I have the right to overrule him since I think he is making a mistake? I realize that this is his health and his life, but I don’t think he is thinking clearly in this regard and I want to do what is in his best interest.

Jonathan Says: Unlike the financial durable power of attorney you are acting under which permits you to act regardless of whether your father is unable to act for himself, the health care power of attorney naming you as your father’s patient advocate only becomes effective granting you authority to act on your father’s behalf at that time when your father can no longer make decisions for himself regarding his health care. Assuming your father is not yet at that place, then the answer to your question is “no” and you have no authority to overrule your father’s decisions regarding his medical care; once it has been determined that your father no longer has the ability to make decisions for himself, you will then have the right to step in as his patient advocate and make his health care decisions for him.

Having said the above, this does not stop you from voicing your opinion and having an open and honest conversation with him, and assuming he permits you to do so, discuss your reservations with his doctor regarding this medical procedure. Good luck.

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, PC, 1700 East Beltline, N.E., Grand Rapids, Michigan 49525.

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