As you age, or in the event of an accident, injury, or illness, you may need assistance in managing your affairs or making health care and personal decisions. However, you want to assure as much autonomy for yourself and the least amount of intrusion into your affairs as possible. Making choices now, while you have capacity to do so, can go a long way toward balancing these concerns by designating the person of your choice to make decisions according to your wishes. You can also designate the circumstances when that power comes into effect. By taking action now, our office can help you develop a plan that takes into account the possibility of incapacity and terminal or long term illness, saving you and your family time and expense.
Under today’s laws, both state and federal, you have fundamental rights to control your life. These rights include the right to choose who will make decisions for you if you are unable or become incapacitated. A person’s spouse will not always automatically have the legal authority to handle all of the person’s affairs. Advance directives are written instruments that you can use to give others advance instructions or “directives” for the times when you are not able to make your own decisions or take actions. Importantly – for you and your family – by executing these advance directives you can avoid the burden and complications of Guardianship, which is a time consuming, potentially expensive legal process involving the courts in your decision making. One of the most important advance directives is the Power of Attorney.
A power of attorney is a document designed to allow you, the principal, to grant certain authorities or powers to another person to handle your affairs. That person is appointed your “attorney in fact,” and the appointment can be very limited (such as to pay your bills or handle the sale or purchase of a house or vehicle while you are out of town) or very broad (handling everything from banking and retirement accounts to benefits and strategic gift giving). The appointed person must act in a “fiduciary capacity” – which essentially means the person must act in your best interest. You can execute the document only if you are of legal age (at least eighteen years old) and mentally capable when signing it in the presence of a notary public. A relative or other interested person cannot simply “get” a power of attorney over you if you become incapacitated. That person, however well-intended, would need to ask a court to grant him or her those powers via a guardianship proceeding.
A well-drafted power of attorney should be written according to your wishes, and can be set up to take effect now or only if you become incapacitated later, and will remain in effect if you become incapacitated unless the document states otherwise. Care should also be taken in choosing the person you appoint – married clients often choose their spouse as the first choice, and a nearby trusted family member as an alternate.
Your power of attorney should also be drafted carefully to address such issues as Medicaid planning and the authority of your attorney in fact to make gifts on your behalf in the event you require long term health care in the future.
A power of attorney can also grant health care decision making authority to your attorney in fact. However, the health care power of attorney should be done in conjunction with an Appointment of Health care Representative in order to give the attorney in fact/representative full health care decision making powers.
Consulting with your attorney on the appropriate elements to your power of attorney, and executing your plan now, can literally pay for itself in the future. Our office is here to discuss and help.