Here's an uncomfortable truth about advance planning: those who need a power of attorney the most are often the least likely to have one. A 2023 study of 499 Black and white adults aged 50 or over (Fennell et al., 2023) found that only 33.0% of Black participants had appointed a durable power of attorney for health care, compared to 40.8% of white participants. This difference is significant. Because when a parent has a stroke or a grandparent starts to develop dementia, someone has to make decisions. Without the right paperwork, that 'somebody' could be a judge who has never met your family.
With an estimated 48.3 million people identifying as Black in the United States in 2023 — accounting for around 14.4% of the population, 56% of whom reside in the South (Pew Research Center, 2025) — this is a topic of discussion in countless households across the country. It's often an uncomfortable one. Talking about who will make decisions for you when you can't speak for yourself can feel like inviting bad luck. However, a power of attorney isn't about relinquishing control. It's about maintaining control within your family on your terms rather than handing it over to strangers in a courtroom.
This guide will walk you through the main types of power of attorney, explain how to set one up, and highlight the common mistakes that can cause real pain to families. Although a power of attorney lawyer can tailor these documents to your situation, it is helpful to understand the basics first.
Table of Contents
What a Power of Attorney Actually Does
A power of attorney (POA) is a legal document. It allows you to appoint someone to act on your behalf. The person who creates it is called the 'principal' — that's you. The person you choose is called your agent and, in some states, your 'attorney-in-fact' (this does not mean they have to be a qualified lawyer).
Depending on what powers you give them, your agent can do things like pay your bills, manage your bank accounts, sign documents or make medical decisions. The key is that you decide how much power to hand over. You decide how much power to give them.
Here's why this matters so much: If you become unable to make decisions and you haven't appointed a power of attorney (POA), your family can't simply step in. To manage your money and property, they would usually have to go to court and ask a judge to appoint a guardian or conservator, although many states let close relatives make some medical decisions without one. This process is called a guardianship proceeding and is expensive, slow and public. Granting a POA in advance usually avoids all of this.
Setting up a power of attorney is cheaper than going to court. Setting one up now could spare your family that expense and months of stress in the future.
The Main Types You Need to Know
Not all powers of attorney are the same. One of the most common mistakes people make is choosing the wrong type. Here, we will break down the ones that matter most for families.
Durable Power of Attorney
A durable power of attorney remains valid even if you become incapacitated, meaning you can no longer make decisions for yourself. This is what most families actually need. A regular (non-durable) power of attorney ends the moment you lose capacity, which is precisely when it is needed most. So, when people ask how to set up a power of attorney for an ageing parent, the durable version is almost always part of the answer.
Healthcare Proxy
A healthcare proxy, also known as a medical power of attorney, enables your agent to make medical decisions on your behalf when you are unable to do so yourself. This is separate from your financial power of attorney. A previous study found that only 33.0% of Black adults over 50 had this document, and just 30.1% had completed a living will (Fennell et al., 2023). These figures suggest that many families are one emergency away from facing significant challenges.
Springing Power of Attorney
A springing power of attorney only takes effect when a specific event occurs, typically when a doctor confirms your incapacitation. It 'springs' into action. Some people prefer this option because it means the agent doesn't have power of attorney until it's truly needed. The downside? Proving incapacity can cause delays, and this is often the worst possible time for red tape.
Supported Decision-Making
Some states have a newer option. For example, Florida created a supported decision-making agreement under Fla. Stat. § 709.2209, which took effect on July 1, 2024 (Florida Legislature, 2024). This allows an agent to assist in gathering information and communicating the principal's decisions, but does not permit them to bind the principal and is not a durable power of attorney. It is intended for individuals who can still make their own choices, but who would like assistance in doing so.
How to Set One Up the Right Way
Setting up a durable power of attorney isn't complicated, but the details matter. If you get them wrong, the document may be useless when you need it. Here's the general process in most states:
- Decide which powers to grant. Be specific. For example, do you want your agent to handle real estate? Sell property? Create trusts? Spell it out.
- Choose your agent carefully. They should be someone you trust completely with both your money and your life. Read on for more information.
- Consider appointing an alternative agent in case your first choice is unavailable.
- Sign and notarise the document in accordance with the rules of your state. Many states also require witnesses.
- Provide copies for those who need them, such as your agent, bank and doctor.
The signing rules differ widely. For example, Washington enacted the Uniform Electronic Estate Planning Documents Act (SB 5787, 2024 Laws ch. 188, effective June 6, 2024), which, under RCW § 11.135.090, now permits the electronic witnessing of certain estate-planning documents via electronic presence (Washington State Legislature, 2024). This is indicative of the direction in which things are heading, but don't assume that your state allows it. Check the rules where you live before relying on anything.
Many states have adopted the Uniform Power of Attorney Act, which standardizes how these documents operate. The District of Columbia adopted it on February 23, 2023 (D.C. Council, 2023); Vermont on July 1, 2023 (Vermont General Assembly, 2023); and Michigan on July 1, 2024 (Michigan Legislature, 2024). As there is no single verified count of every state that has adopted it, you should ask a local attorney whether your state follows this framework.
Do you need a Black lawyer? Heritage Web can put you in touch.
What Happens When a Bank Refuses to Honor It
You'd think that a signed and notarised power of attorney would be accepted everywhere. But it isn't. Banks and nursing homes sometimes delay or even refuse to accept it, which leaves families in a difficult situation.
Some states fought back. Under Michigan's MCL § 556.220, which took effect on July 1, 2024, a person must either accept an acknowledged power of attorney (POA) or request a permitted document within seven business days. They must then accept the requested document within five business days of receiving it (Michigan Legislature, 2024). Similarly, Vermont set the same seven- and five-business-day periods under 14 V.S.A. § 4020, which took effect on July 1, 2023 and was amended in 2024 (Vermont General Assembly, 2024). In both states, wrongfully refusing to comply can result in a court order, plus attorney fees and costs.
That's a useful tool. If an institution refuses to cooperate with you in one of these states, you may have more leverage than you realize. However, rules like these don't exist everywhere, so make sure you know what applies where you live.
An Agent's Duty Is a Serious One
It is an honor to be named as an agent. It is also a legal obligation. Your agent owes you a fiduciary duty, meaning they must act in your best interests rather than their own. Breaking that duty has consequences.
Courts take this seriously. In the case of Guthrie v Guthrie (2024-Ohio-5581), an Ohio appeals court upheld the decision that a daughter had breached her duties under her mother's power of attorney (POA) (Ohio First District Court of Appeals, 2024). According to one reported figure, the procedural history refers to approximately $36,086 owed, including around $11,000 in improperly paid guardianship attorney fees. In Succession of John Garner Lynch (July 16, 2025), a Louisiana Court of Appeal found that an agent had exceeded the authority of the power of attorney (POA) by creating and funding a trust that mainly benefited someone other than the principal, so the court voided the trust and the transfers (Louisiana Court of Appeal, 2025).
Agents are not granted unlimited power, either. In LP Radcliff, LLC v. Simcoe (April 26, 2024), the Kentucky Court of Appeals ruled that a durable power of attorney (POA) did not authorize a daughter to sign an optional nursing home arbitration agreement (Kentucky Court of Appeals, 2024). Similarly, in Boone Operations, LLC v. Adams (2025), an Arkansas court ruled that an arbitration agreement did not bind a nursing home resident because his POA required two agents to act jointly (Arkansas Court of Appeals, 2025). The lesson? A POA only grants the powers it specifies.
Red Flags That Should Worry You
A power of attorney (POA) puts enormous power in one person's hands. Most agents are honest. However, elder financial abuse is a growing problem, so families need to stay alert.
The scale is sobering. Between June 2022 and June 2023, financial institutions filed 155,415 suspicious activity reports relating to the financial exploitation of the elderly, covering roughly $27 billion in reported suspicious activity (Financial Crimes Enforcement Network, 2024). These are reports of suspicious activity, not confirmed losses, and they are not specific to power of attorney cases, but they show how much money moves in ways that raise concern. In the 2023 financial year, Adult Protective Services programs reported 1,531,766 referrals alleging adult mistreatment (Administration for Community Living, 2023).
Real criminal cases demonstrate just how bad things can get. For example, in September 2024, a man was sentenced in a federal court in Tennessee to pay more than $1.2 million in restitution after obtaining an older woman's power of attorney and defrauding her (U.S. Department of Justice, 2024). Similarly, in December 2025, a man was sentenced in a federal court in Illinois to pay $411,773.51 after he obtained the financial and healthcare POAs of an older man and spent his savings (U.S. Department of Justice, 2025).
Look out for these warning signs:
- An agent who refuses to share records or answer questions about money.
- A relative suddenly pressuring an elderly parent into quickly signing documents.
- Large withdrawals or new names being added to accounts.
- A caregiver who isolates the principal from the rest of the family.
If you notice any of these signs, talk to a solicitor quickly. You may be able to challenge the power of attorney or report the abuse before any further damage is caused.
Closing the Planning Gap in Our Community
The planning gap isn't just about powers of attorney (POAs). A 2025 AARP survey of adults aged 50 and over found that only 8% of Black respondents had a personal trust, compared to 18% of white respondents (AARP, 2025). Cost and confusion are contributing factors — an earlier AARP survey found that 15% of adults over 50 without a will said they couldn't afford one, while 19% said they didn't know how to start the process (AARP, 2024).
The good news is that help is available, often for free or at a low cost. For example, Howard University School of Law runs an Estate Planning and Heirs' Property Clinic, where students draft wills, powers of attorney (POAs), and other documents. Community members can contact the clinic's intake office on 202-806-8082 (Howard University School of Law, 2023). Black bar associations also host clinics — in January 2024, for example, the Amistad Long Island Black Bar Association organized a free legal clinic offering estate-planning advice to local residents (New York State Assembly, 2024). Ask around. These resources are designed for families like yours.
Your Next Steps
Don't wait for a crisis to force the issue. If your parents don't have a durable power of attorney or a healthcare proxy, it's worth having that conversation this month. Choose trustworthy agents, be clear about the powers you grant and ensure the documents are signed in accordance with your state's requirements.
A qualified lawyer specializing in powers of attorney can help make sure your paperwork is valid and harder for someone with bad intentions to misuse. Get connected with a Black lawyer who understands your community. Submit your case details via Heritage Web's secure referral form.
This article provides general information and does not constitute legal advice. If you require guidance on a specific situation, please consult a qualified attorney.
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Sources
- Guthrie v Guthrie — Ohio First District Court of Appeals, 2024
- Fennell et al. — Fennell et al., 2023
- U.S. Department of Justice — U.S. Department of Justice, 2024
- Succession of John Garner Lynch — Louisiana Court of Appeal, 2025
- Pew Research Center — Pew Research Center, 2025
- LP Radcliff, LLC v. Simcoe — Kentucky Court of Appeals, 2024
- Financial Crimes Enforcement Network — Financial Crimes Enforcement Network, 2024
- Boone Operations, LLC v. Adams — Arkansas Court of Appeals, 2025
- Estate Planning and Heirs' Property Clinic — Howard University School of Law, 2023
- Michigan Legislature — Michigan Legislature, 2024
- Amistad Long Island Black Bar Association — New York State Assembly, 2024
- Vermont General Assembly — Vermont General Assembly, 2024
- Washington State Legislature — Washington State Legislature, 2024
- D.C. Council — D.C. Council, 2023
- Uniform Electronic Estate Planning Documents Act — Washington State Legislature, 2024
- Florida Legislature — Florida Legislature, 2024
