Episode 8- Legal Docs, The Basics

When it comes to aging, having the right legal documents in place can protect your voice, your wishes, and your family’s peace of mind. In this episode, Jamie Callahan breaks down the basics of powers of attorney, guardianship, conservatorship, POLST, and advance directives—what they are, when they matter, and what happens if you don’t have them in place soon enough.

She covers:

• What a power of attorney can and can’t do
• Why banks often reject standard POA documents
• How guardianship and conservatorship differ—and when they’re necessary
• The role of POLST and advance directives in life-or-death situations

This episode is a must-listen for anyone who wants to plan ahead with clarity and confidence—not in crisis.

📞 Questions? Call Team Senior at (541) 295-8230.

Transcript

Episode-8-Legal Docs, The Basics

Hi, this is Jamie Callahan with the Team Senior Podcast. Our goal is to simplify aging. Society grooms us to plan for retirement—but what about life beyond retirement, where the rubber meets the road? Perhaps you've had a stroke or you've been diagnosed with cancer, or maybe you're forgetting things and now you have dementia.

That's our area of expertise, and we are here to share our insight.

And now, the Team Senior Podcast.

Hi, this is Jamie Callahan, and we are going to talk a little bit today about legal documents—the types of legal documents that exist, when you need to put them in place, and some things that you should certainly know about their timing.

So the first one I want to talk about is a power of attorney. Often folks refer to this as a P.O.A. A P.O.A. can really be anyone in your life, and it's something that you get to give away at will and also take away at will. A power of attorney is sometimes an adult child, maybe a dear friend, maybe a sibling, could be someone from your church or a neighbor or anything like that.

But ultimately, you want your power of attorney to be someone that you really trust implicitly.

Something that's important to know about the power of attorney is that while it does allow someone to come alongside you and make decisions, it does not take away your ability or your authority to make decisions for yourself.

So an example of that would be: if, for example, your power of attorney is your adult daughter, and she really wants you to do something, and she is going to sign a document saying that you're going to do something—so long as you are in agreement—she does have the authority to sign that document on your behalf as your power of attorney. But it does not take away your ability to override that decision, because at the end of the day, you still have the end-all, be-all authority, even if you have granted power of attorney to someone.

It's important to know also that the power of attorney, 90% of the time—maybe 99% of the time in this day—is not going to be effective at your bank. Your bank has their own power of attorney, meaning that in order to make someone a signer on your account or give anyone any kind of authority at your bank, you're likely going to need to go into the bank and bring that individual with you.

And then the bank will have you sign their own power of attorney documents. And that's really important to note. A regular power of attorney—whether it's durable or health or financial—has zero authority at the bank like 99% of the time.

So I want to pivot quickly and talk a little bit about how a guardian and a conservator are different.

Guardianship and conservatorship are not something that you can just give to someone. Those are documents or forms of authority that are granted through the court. So you need an attorney. And the attorney's going to help you present or substantiate reasons why you need to have guardianship over someone.

So this is usually like a spouse or an adult child or maybe a sibling that recognizes that the person they're trying to get guardianship or conservatorship for is no longer really capable of making good decisions on their own. So they would usually not go to the courthouse themselves. It would usually be someone on their behalf who will go and advocate through an attorney with a judge or present it to a judge, where they are indicating, for example: Dad has dementia. He's not agreeing to go into memory care, and we need to get him into memory care because he's not safe. Either he's been combative or verbally abusive, or he's an elopement risk—he's leaving his house every day, and it's not safe for him to be at home anymore. But he's also not agreeable to go into memory care.

So this is where sometimes a guardianship or conservatorship is really necessary, because at that point, those two things take away an individual's ability to make decisions for themselves. So they override the individual's ability to say no if we know that it's safe for them to move into memory care.

There are some other times when those documents are really important, and sometimes in those scenarios you can get the senior to agree to having those things in place. An example of that would be: we were working with a family some years ago where the mom was giving away hundreds, thousands of dollars on a regular basis to a grandchild who was living with her. And we recognized that she was spending all of her money that was coming in every single month.

So the family was having a really hard time finding financial means to move her into assisted living, where she really needed to be. It wasn't safe for her to be at home anymore. The grandson was claiming that he was going to take care of her or help take care of her, and that wasn't happening either. He was essentially just getting a free ride from his grandma.

And in order to get the family in a position of authority, we needed to get conservatorship in place. So we met with all of the adult children and the grandmother, and explained to the grandmother that by giving conservatorship to the adult children, they would be able to manage her finances, and then she wouldn't be in a position anymore of having to say no to the grandson—which was something that was really important to her.

And all of that ended up working out. We saw that all the way through the courts, helped them connect with an attorney, and they were able to get conservatorship in place.

Something to note here also is that guardianship and conservatorship are not the same thing. Guardianship essentially guards the body—or that’s how I always remember it—and makes those medical and healthcare-related decisions for the person that they are assigned the guardianship for. Whereas the conservator helps to manage the money, right? So they're paying bills, overseeing finances, the sale of a home.

In that scenario specifically, it's really important for people to know that if you are going to be the conservator for someone, there's a lot of checkpoints with the court system. They want to see where every cent is going, and so it's important for anyone that is going to be a conservator to know that there's a vast amount of documentation that is required. It's not rocket science, but you definitely need to know that going into it.

So that's guardianship and conservatorship.

Again, the way they differ from a power of attorney is that a power of attorney allows someone to come alongside an individual and make decisions with them—but it does not take away their authority to make decisions for themselves. Whereas guardianship and conservatorship is a court-appointed thing, and those do take away an individual's ability to make decisions for themselves.

Another really important thing to note is that when dementia is in play, power of attorney has to be granted before the dementia diagnosis in most cases. That means that when someone has dementia, you have to believe—essentially—that person doesn't have capacity to make decisions for themselves, and therefore cannot grant power of attorney to anyone.

So oftentimes, especially in a progressive case of dementia, the courts or the memory care community or the hospital—or whoever has all of their hands in the future of the individual that's in discussion—what will happen is that guardianship or conservatorship will have to come into play there. Because you have to assume, again with the progressive dementia diagnosis, that the individual doesn't have the ability to grant power of attorney.

So if they did not do that prior to having a dementia diagnosis, sometimes that really presents a problem.

This is where we really try to coach families. When we're meeting with them in the years leading up to this, as we're helping them put a plan in place, we encourage them to start considering who they want their power of attorney to be.

Because if at any point it should be deemed that you do not have capacity to assign power of attorney to someone, then they have to pursue guardianship and conservatorship—and that can actually be a very costly thing. Usually a couple thousand dollars for the courts.

Again, those are all things that we can help you with. And I want to pause here for a moment and just remind everybody that you don't have to remember all of this.

I often say that we're the company that will answer the phone on Christmas morning—and that couldn't be truer. If you call us, we will help you. And it's a very short conversation. We're not going to make you jump through a bunch of hoops and answer a zillion questions. We're really just going to get to the root of what it is that you need, try to answer all of your questions, give you the absolute best tools to take the next step, and then just encourage you to reach back out if you meet any hurdles or roadblocks that cause you to have additional questions.

We are truly the company that wants to help you get through the weeds as quickly as possible.

So I'm going to move on quickly to the POLST.

The POLST is the Physician’s Order for Life-Sustaining Treatment. That is a document that most people see in the form of a bright pink piece of paper. It's oftentimes found on the refrigerator of someone that is aging. And the reason why you find it there—the reason why the entire medical community and long-term care community encourages folks to keep it there—is because it tells the paramedics, should you call 911, if you want to be resuscitated or not.

The POLST is essentially: Are you a DNR (Do Not Resuscitate) or do you want to be resuscitated?

That's a real quick and easy way for the paramedics to reference that document without having to ask you questions. There are plenty of times when the paramedics show up and someone can't answer questions, so it's important that you have it in a place that is universally known by everybody that might show up in your home.

The advance directive is the next and last thing that we're going to talk about.

The advance directive essentially supports the POLST in some ways. The advance directive can be implemented at any time in your life, and we really encourage people to put an advance directive in place no matter how old you are.

Because if you are 22 years old and you get into a car accident, and you have real strong opinions around how you want to be sustained through IV hydration or tube feeding or a vent or whatever that looks like, the advance directive allows you to have a voice—even if you are incapacitated. You're in a coma, you still get to choose what types of life-sustaining treatments you want.

The advance directive also has a very specific place that allows you to put someone in a position of authority in your place. So let's say you've said you want IV hydration and you want tube feeding, but there are perhaps questions that you didn't answer on your advance directive—or maybe the hospitalist, the doctor that is rotating, is coming in and asking questions like: What do you think of this kind of treatment? Or: Do we want to continue to keep this person on life support?

The person that you appoint as your designated responsible party as a part of your advance directive is the person that you have also put in place to make those decisions for you if you can't be making those decisions yourself.

It definitely trumps the power of attorney.

Many times in this case, we don't have a guardian or a conservator in place. But again, it's really important for you to know that the advance directive supports your POLST. The POLST says: Do I want to be resuscitated or not? Now that you've been resuscitated, how are we going to take care of you? And then the person that you put in place in that advance directive helps to determine additional decisions that might need to be made.

So I'm going to close our podcast today. I know I just downloaded a lot of information. There are so many more things to consider around legal documents. We did not talk at all today about wills and estates and probate and all of those things—we will likely talk about that again in another podcast.

But I'm going to close today just reminding you that if you have any questions, please give us a call. It's always great to check in with you all, and have a wonderful day.

Thank you for listening to the Team Senior Podcast. We're here every week sharing new and relevant information. Remember that we're just a phone call away. Team Senior can be reached at (541) 295-8230.

Until next time, this is Jamie Callahan.