"I've Got the Power"...of Attorney

I've got the power! When legally preparing for the unexpected, it is important to understand the concept of “power of attorney.” Various versions of this legal document are recommended for most people in their end-of-life planning, which can be confusing because the various names are often used interchangeably.

The simplest definition is that a power of attorney is giving someone (the agent) the right to act on your (the principle) behalf. It dictates who you are authorizing to act on your behalf, what limited scope of tasks you are allowing them to perform, and under what conditions you are giving them power to do so. For the document to be valid, you must be of sound mind and acting on your own accord when signing off.

Examples of how we use powers of attorney in everyday life include the following:

• A car dealership uses a power of attorney to register a car with the state on behalf of the new owner

• Members of the military use power of attorney to allow someone to manage a soldier's finances while deployed overseas

• A home buyer or seller may use power of attorney if unable to sign documents prior to closing the sale or attend the closing in person

It is important to note that regardless of what the terms of the agreement are, the authority of a power of attorney ceases when the principle dies. This is an oft-misunderstood concept for people planning their end-of-life affairs. Some think that because they have given power of attorney to an adult child to pay bills, deposit checks, file taxes, etc., they do not need to do anything else to get their affairs in order. This is not true. Only a last will and testament or a living trust can authorize others to care for a deceased loved one’s affairs.

As an example, suppose Jim, who is aging, asks his daughter, Jane, to be his financial power of attorney to manage his bank account and pay his bills every month. Jane agrees and instead of adding Jane as an authorized user of the checking account, they sign the appropriate power of attorney agreement. The bank honors the agreement and Jane is now given access to the account. This agreement goes on for several years until Jim passes away, at which point Jane’s power of attorney authority ends. Once the bank learns of Jim’s death, it will freeze the account and Jane will no longer have access unless she can show that she is the executor of Jim’s will or the courts appoint her as such through the probate process.

Below are a few of the different types of powers of attorney that are typically associated with end-of-life planning. The titles of any power of attorney are not as important as the content and terms of the document, so read them carefully before signing. If you have any questions about how these apply in your situation, consult with an attorney.

• General Power of Attorney – allows an agent to conduct any business on behalf of the principle that is authorized by the law, but this power ends when the principle cannot speak for themselves.

• Durable Power of Attorney – Allows the agent to carry out specific tasks if the principle becomes incapacitated. The authority “endures” the incapacitation of the principle.
  * Durable Healthcare (AKA “Medical Power of Attorney”) – Limits authority to healthcare related decisions
  * Durable Financial – Limits authority to managing financial affairs

• Special or Limited Power of Attorney – Limited to the scope outlined in the document (e.g., paying only the mortgage and utilities). Authority ends when the task is completed or until a specific time period expires.

• Springing Power of Attorney – "Springs” into effect when certain conditions are met, such as when a military person is deployed overseas.

If you need further assistance, contact us at peaceofmind@affairsinorder.com.

ACTION ITEMS:

• Decide who you would like to make medical decisions and pay your bills on your behalf if you become incapacitated. It does not have to be the same person.

• Talk to that person to confirm their willingness.

• Find an attorney to assist you drafting the appropriate documents for your end-of-life plan.