Few of us are comfortable talking about illness, disability, or death. However, these issues won’t go away just because we refuse to confront them. In many cases, the failure to plan for your own illness or disability will only compound the problem. In order to help you understand how addressing such issues head-on can help you be legally, and even emotionally prepared, there is one critical legal tool that you should seriously think about…a power of attorney.
- What is a Power of Attorney (POA)? A power of attorney is a document in which you grant certain authority to another person (referred to as an “agent”) to act on your behalf. A POA can be very specific – for example, you may want your father to sell your old college auto sitting around the garage, and you would draft a POA for that specific purpose. Once the car was sold, the POA would no longer have any authority. However, most people are more familiar with a general POA which grants a person broad authority to handle a multitude of legal or financial decision-making chores in your stead.
- Will a POA be valid if I am mentally incapacitated or incompetent? In most states, the general POA would not be valid. However, a Durable POA clearly states that you intend the power to continue if you become disabled or incapacitated. This type of POA generally remains in effect until you intentionally revoke it or you die.
- Who would be the best person to name as my agent under a durable POA? Must it be a lawyer? In most states, your agent does not have to be a lawyer. It can be an adult or even an institution. However, it should be someone who knows you well and will look out for your best interests. After all, the decisions made by your agent can have significant consequences. If there is no one you trust with this type of authority, you might be better offer seeking other estate planning tools.
- Who decides if I am incapacitated? You can specify how you wish to have your incapacity and mental status determined if the need should arise. You can name a doctor or mental health professional that will be responsible for making the determination, or you could state that if two doctors certify in writing that you lack capacity, then the power of attorney would become effective.
- When should I draft a POA? You may believe that a power of attorney (and other estate planning documents) is not required at this point in your lives. However, we are all aware that events in our lives happen without warning and it is much more difficult to create the documents that will give those you love the direction they need in caring for you and your estate.