Top 10 Reasons Everyone Needs a Comprehensive Power of Attorney
PART I
3. Provides family members a good opportunity to discuss wishes and desires. There is much thought and consideration that goes into the creation of a comprehensive power of attorney. One of the most important decisions is who will serve as the agent. When a parent or loved one makes the decision to sign a power of attorney, it is a good opportunity for the parent to discuss wishes and expectations with the family and, in particular, the person named as agent in the power of attorney. 4. The more comprehensive the power of attorney, the better. As people age, their needs change and their power of attorney should reflect that. Seniors have concerns about long- term care, applying for government benefits to pay for care, as well as choosing the proper care providers. Without allowing the agent to perform these tasks and more, precious time and money may be wasted. 5. Prevents questions about principal’s intent. Many of us have read about court battles over a person’s intent once that person has become incapacitated. A well-drafted power of attorney, along with other health care directives, can eliminate the need for family members to argue or disagree over a loved one’s wishes. Once written down, this document is excellent evidence of their intent and is difficult to dispute. These are the first five reasons why you need a power of attorney. Next month, I will explain the final five reasons why you want to have a proper and effective power of attorney in place along with a bonus reason as well. Stay tuned! –Mark Martella, Esq.
All too often I get a call from a frantic client asking for a power of attorney for a spouse who has just been rushed to the hospital, unconscious, and in intensive care with tubes coming out of a dozen different places. I then need to have the difficult conversation about how it is too late to prepare a power of attorney, because the unconscious spouse is the one who needs to sign it, and until she can knowingly and voluntarily sign it, there is no document I can draft to help. Furthermore, if the illness is prolonged, they will need to go through an expensive and time- consuming guardianship process. As you can see, the benefits of a highly detailed, comprehensive power of attorney are numerous. Unfortunately, many powers of attorney are more general in nature and can actually cause more problems than they solve, especially for our senior population. This article highlights the benefits of a comprehensive, detailed power of attorney, including some of the provisions that should be included. A proper starting point is to emphasize that the proper use of a power of attorney as an estate planning and elder law document depends on the reliability and honesty of the appointed agent. The agent under a power of attorney has traditionally been called an “attorney-in-fact” or sometimes just “attorney.” However, confusion over these terms has encouraged the terminology to change so more recent state statutes tend to use the label “agent” for the person receiving power by the document. The “law of agency” governs the agent under a power of attorney. The law of agency is the body of statutes and common law court decisions built up
over centuries that dictate how and to what degree an agent is authorized to act on behalf of the “principal” — in other words, the individual who has appointed the agent to represent him or her. Powers of attorney are a species of agency-creating document. In most states, powers of attorney can be and most often are unilateral contracts — that is, signed only by the principal, but accepted by the agent by the act of performance. Let’s take a look at the benefits of having a comprehensive durable power of attorney: 1. Provides the ability to choose who will make decisions for you (rather than a court). If someone has signed a power of attorney and later becomes incapacitated and unable to make decisions, the agent named can step into the shoes of the incapacitated person and make important financial decisions. Without a power of attorney, a guardianship or conservatorship may need to be established, and can be very expensive. 2. Avoids the necessity of a guardianship or conservatorship. Someone who does not have a comprehensive power of attorney at the time they become incapacitated would have no alternative than to have someone else petition the court to appoint a guardian or conservator. The court will choose who is appointed to manage the financial and/or health affairs of the incapacitated person, and the court will continue to monitor the situation as long as the incapacitated person is alive. While not only a costly process, another detriment is the fact that the incapacitated person has no input on who will be appointed to serve.
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