Powers of Attorney
A power of attorney document will give the person you select the legal right to take actions on your behalf. There are two primary types of powers of attorney: financial and medical (also called healthcare). When you write a power of attorney, you are the principal and the person you designate to make decisions for you is your agent. This is not a document you want to DIY.
At Thienel Law, you have direct access to an attorney with two decades of experience in drafting powers of attorney. When you schedule an appointment to discuss your power of attorney, I will personally sit down with you and help you decide what terms you need to have in your power of attorney documents.
Financial Power of Attorney
There are three main types of financial power of attorney instruments: general, durable, and springing.
General Power of Attorney
It can be convenient to have a general power of attorney that allows someone to take care of financial matters for you on occasion, such as when you are traveling. A general power of attorney goes into effect as soon as you sign it, and it stops working at the moment that you revoke it or become incapacitated. With a general power of attorney, someone else can handle your banking, investments, and whatever else the document specifies.
Many people enjoy the freedom of having a financial manager pay their bills, manage their real estate or other business ventures, and generally mind the store. With a general power of attorney used this way, you can step away from that daily grind and spend your time on leisure activities. I can make sure that your general power of attorney contains the terms you need without giving your agent excessive authority. With a general power of attorney, you can still handle your financial matters whenever you choose to do so. You do not give up any of your rights with this document.
Durable Power of Attorney
If you want someone to be able to take care of your financial affairs in the event you become temporarily or permanently incapacitated, you will need a durable power of attorney. With this instrument, the person you select will step into your shoes and take care of whatever your durable power of attorney directs him or her to do if you are unable to make or communicate decisions for yourself.
You can draft a durable power of attorney that will go into effect immediately and continue after you become incapacitated, if you specify that the document is a non-springing durable power of attorney. Whether it is a springing or non-springing durable power of attorney, it will have a long life – until you either revoke the document or pass away. Once you become incapacitated, you will not have the legal authority to make changes to your power of attorney, so think long and hard about the terms that you want in this document and the people you designate to act as your agent.
Springing Power of Attorney
Unlike a non-springing durable power of attorney, a springing durable power of attorney sits dormant until an event occurs that triggers it. Your agent cannot use a non-springing durable power of attorney to transact business for you before the triggering event happens. Springing durable powers of attorney are usually tied to the event of the principal becoming disabled or incapacitated. I will define in the document what you intend by the words “disabled” or “incapacitated” to protect you from someone who tries to use the instrument when you did not intend him or her to do so.
What Powers Can You Grant in a Financial Power of Attorney?
When we meet to plan your estate documents, we will talk about the specific powers that you want your agent to perform on your behalf. You might be comfortable with your agent handling some financial matters for you but not others. You might want to set up multiple financial power of attorney instruments, for example, authorizing one person to run your business and another person to manage your investments or personal finances.
Here are some of the powers you can grant your agent in a financial power of attorney:
- Making legal claims and handling litigation
- Buying, selling or managing your real estate
- Banking and investments
- Insurance transactions
- Managing your pension, retirement account, government and military benefits
- Gifting authority for gifts you usually make to your family and charitable organizations
- Running your business
What Should a Financial Power of Attorney Include?
You should list at least three people to serve as your agent, plus at least two institutions such as a bank. You should not, however, arrange it that they have to work as a committee because that will make it difficult for them to work efficiently. Make your list of people and organizations you trust, then prioritize them from the first choice through the last choice. Specify that Person A is your first choice, but if Person A is unwilling or unable to serve, then Person B, and so on.
What Can Happen If You Do Not Have a Financial Power of Attorney?
Having a general power of attorney can be a wonderful convenience that frees up your time to do things other than managing your financial affairs. If you do not have a general power of attorney instrument, the consequences are usually minor, and merely a matter of your time and convenience.
If you become incapacitated, however, and do not have a durable power of attorney, your loved ones will have to go to court to have a judge appoint someone to serve as your conservator. This court process can take months and cost your family far more than the expense of having me draft a durable power of attorney for you. By not having an agent already named to handle your financial affairs, your family will be thrown into financial chaos while they are also grappling with your health crisis. And there is always the risk that the person the judge appoints is not someone you would have chosen.
Medical Durable Power of Attorney
What Powers Can You Grant in a Durable Medical Power of Attorney?
Your agent can do whatever you authorize him or her to do in your durable medical power of attorney. You must be careful when drafting a medical power of attorney that you do not give more powers that you want to, but that you give your agent the legal authority to make the decisions you want made. We will talk in detail about your wishes as to life-prolonging treatments, including ventilator, nutrition, hydration, and other end-of-life issues.
A medical power of attorney can deal with many more medical issues, such as allowing your agent to give informed consent for you to have surgery or other medical treatments. You need to decide and express to your agent and me how you feel about certain decisions. You do not, however, have to decide ahead of time on each type of treatment. You can give your agent general decision-making authority, but you should make those decisions easier for him or her by talking about your wishes.
If your belief system is different from that of your agent, you should make clear that the agent is supposed to make the decisions that you would make for yourself, if you could. If you do not think the agent can or will honor that stipulation, you should choose a different agent.
What Should a Medical Power of Attorney Include?
Make sure that your medical power of attorney is durable, because a non-durable instrument is void when you become incapacitated. Also, give your named agent the right to read your medical records so that there will not be a Health Insurance Portability and Accountability Act (HIPAA) battle with the doctor or hospital. Name multiple alternate agents, just as for your financial power of attorney.
What Can Happen If You Do Not Have a Medical Power of Attorney?
Without a durable medical power of attorney, your loved ones will have to get a court order giving them the authority to act on the wishes you may have told them over the years. There can be divisive family conflict over the decisions they should make. Without written directions from you, your family could be in the uncomfortable position of making life-or-death decisions for you without your guidance or input. No matter what decision they make, they might have to deal with guilt for years, and worry about whether they made the right choices for you.
A well-crafted durable medical power of attorney will reduce the likelihood that your family will have to go to court to get a guardianship put in place for your care decisions. Like a conservatorship, a guardianship proceeding is more expensive than a durable medical power of attorney, and it takes months to get a permanent guardianship approved. Also, just as with a conservatorship, the court might appoint a guardian whom you would not have chosen.
Experience You Can Trust
Power of attorney instruments are valuable estate planning tools that can make life better for you and your loved ones. Please contact me at Thienel Law, LLC, so that I can assist you with your power of attorney and other estate planning needs.