My Parent Needs a Power of Attorney—Can I Have it Prepared for Their Signature?
This is a common question that pops up with people trying to assist their parents, and it's usually because a parent is unable or unwilling to contact an attorney for assistance. You generally shouldn't have estate planning documents prepared for a third person, and if you do, that person should still have their own attorney advising them--this protects both people involved.
There is no rule that prohibits a person from retaining an attorney to prepare documents for use by third parties. If that were the case, then we wouldn't have most business contracts. In the context of estate planning, however, the dynamic is a bit different because there's always a concern over potential elder abuse.
If you have an estate planning document prepared for a parent to execute, you may be subject to a claim for elder abuse. Another likely possibility is that the document interferes with other estate planning documents and could create a substantial mess down the line. It's also possible that that document is not properly executed, and does not accomplish the parent's actual goal or reflect their intentions.
If your parent wants or needs a power of attorney, you should discuss the matter with them and encourage them to reach out and contact an attorney to assist them. You should not put yourself at risk of adverse claims, or simply have estate planning documents prepared for a third person, without that third person really consulting with an attorney to understand what is needed, the risks involved, and the potential options.
We all want to help our parents because we've read some articles about estate planning, but at the end of the day, it's ultimately their choice to make. While we can give them information and hope that they will take precautionary measures in establishing some sort of estate plan, this simple answer is that it's really difficult to plan for one's own demise--people generally don't want to discuss it.
It's hard to discuss, but it's something that people should discuss more often because we all deal with it, and the more we discuss it, the easier it is to handle when the time comes.
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