Of all the legal documents people sign during their lives, a power of attorney is arguably the most important. Yet many people never have one. Of those who do, most misunderstand them or think that powers of attorney are all the same. They are not.
There are two broad categories of powers of attorney: financial powers of attorney, and health care powers of attorney. Financial powers of attorney deal with money, property and contract rights. They may be broad and allow the agent(s) named in them to do practically anything the person signing the document can do. However, they may be limited to only one or two specific tasks.
Health care powers of attorney allow someone to make medical decisions for you when you are unable to act for yourself. Typically, they cover emergency care when you are temporarily incapacitated. They also should discuss care when you are permanently incapacitated, but not at the end of your life. Finally, they should contain instructions about end-of-life care. They may direct what care you will receive or they may simply name someone to make decisions for you without expressing preferences about what to do.
Everyone experiences incapacity at some point in his or her life. It may last only a few hours or it may be permanent. Either way, it is critical to have someone who can make decisions for you when you cannot. Without a power of attorney, family squabbles may erupt over who will handle your affairs. The court may appoint a guardian to make decisions for you. Your guardian may be a family member, but it may be a person or agency unknown to you and who knows nothing about you.
Consequently, it is much better to plan ahead and pick your own agents and successor agents. You can name a single agent or multiple agents. You can require them to act together or you may allow them to act independently. You can give them broad power or you can limit their powers.
What you should never do, however, is assume all powers of attorney are the same. Avoid generic forms. It is much better to work with an experienced attorney. Your attorney can explain what agents need to do, what provisions, such as gifting and estate planning powers, to include and which ones you may not need. They can also help you select an appropriate agent. After all, if you do not know what an agent is supposed to do, how can you really decide who your agent should be?
When selecting an agent, pick someone trustworthy, but do not stop there. Everyone victimized by an agent thought the agent was trustworthy. Consider if the agent is thoughtful, organized and diplomatic. Make sure your agent is financially secure if he or she will handle your assets. Things like an unstable marriage, mental illness, bad credit and a history of family conflict are all warning signs of a bad agent. Also, consider whether the agent really has the time to help you. Some qualified people may be too busy to devote the time needed to help you.
The bottom line is you must prepare for the day when you cannot do things for yourself. Financial and health care powers of attorney are a critical part of that plan. Pick honest, responsible people to help you, and give them well-drafted documents that empower them to handle whatever comes up.
William R. Blumer is certified in elder law by the National Elder Law Foundation and practices in the area of estate planning, estate administration, fiduciary litigation and business representation with The Law Firm of Leisawitz Heller, Spring Township.
This article was originally posted at www.ReadingEagle.com on February 11, 2018.