Clients frequently ask why Powers of Attorney are necessary for married couples. It is a common misconception that your spouse will be able to handle everything on your behalf, should you become incapacitated. This is simply not the case.
Our basic estate planning package consists of a Will, a General Power of Attorney, and an Advance Medical Directive. A General Power of Attorney is a document in which you can appoint an “agent” (usually your spouse or child) to handle your financial affairs during your lifetime. The main purpose of this document is to ensure that someone will be able to step in to help you in the event of a stroke or Alzheimer’s or other incapacitating illness or accident. If you like to travel, such documents would allow your agent to handle things while you are out of the country. These documents are also helpful in real estate transactions when you cannot attend the closing for whatever reason.
General Powers of Attorney are usually drafted to be immediately useable, but can also include provisions that would require you to be evaluated by a doctor and found to be unable to handle financial affairs before the document could be used. Some clients like to have this added protection in the event that they do not plan to use the document until they are incapacitated. Some clients will have us hold their document in escrow pending their incapacity. Agents under powers of attorney are bound by fiduciary duty and can be sued or prosecuted for theft or breach of that fiduciary duty. Nonetheless, it is always important to select a trustworthy and capable agent to fill this role. As long as you are not incapacitated, you can always revoke your power of attorney by signing a document to that effect and giving notice to your agent.
An Advance Medical Directive is a similar document that appoints an agent, but in this case, the agent is appointed to speak to your doctors and make medical decisions for you in the event that you are unable to do so. This document also includes a HIPAA authorization that allows your agent to obtain your health care information. This document can also include what is called a “Declaration of Intent” (also commonly known as a “Living Will”), where you can set forth your end-of-life instructions. For example, if you do not want to be kept alive artificially (through the use of feeding tubes and ventilators) in the event that you are in a persistent coma from which you are not expected to recover, you can direct your doctors to allow you to die naturally in such an event. In this document, you can also appoint someone to handle your remains upon your death and you can set forth your instructions concerning organ donation if you wish.
If you were to become incapacitated and you did not have these documents in place, what would happen? Someone in the family would have to hire an attorney (at your expense) to prepare and file a petition to have you declared incompetent and to have someone appointed guardian and conservator. A doctor would evaluate you and file a report with the court (also at your expense). A second attorney would be appointed “guardian ad litem” to investigate the petition, meet with you, and report to the court (also at your expense). A hearing would be held and the judge would decide whether you are incompetent and, if so, who should be appointed guardian and conservator to handle your affairs. This process usually takes several months and costs several thousand dollars in legal fees and expenses, but can be avoided by proper planning and executing a General Power of Attorney and an Advance Medical Directive before you become incapacitated.
Another important reason to have an Advance Medical Directive is to avoid family disputes about your end-of-life wishes. Many times children disagree about what their parents would have wanted or let emotion cloud their decision making. By setting forth your wishes in writing, everyone will know your intentions, and therefore speculation and family disputes can be avoided.
Contact us to assist in preparing your estate plan, including powers of attorney.
