A Power of Attorney is essential to getting your affairs in order.
Pondering one’s potential “incapacity” is not pleasant.
It is not a pleasant reality either.
Incapacity is even more unpleasant if you are not prepared for it.
According a recent Recently Heard article titled “6 Reasons to Choose a Power of Attorney,” a power of attorney can help.
You can designate an agent.
What does an agent actually do?
This person will have the authority to make financial or health care decisions depending on the type of legal instrument.
For example, in our practice we create a separate “general durable power of attorney” for financial matters and a separate “durable power of attorney for health care decisions,” as part of our “advance health care directive.”
In our experience, the incapacity decision-makers of our clients have different skill sets.
Some loved ones are detail-oriented and very good with numbers, while others are more compassionate and perhaps knowledgeable about medical matters.
You get the idea.
Also, an “agent” under financial power of attorney is also known as an “attorney in fact,” not to be confused with an “attorney at law.”
You can avoid a guardianship and conservatorship.
A guardianship is when a court appoints someone to manage personal and health care matter.
A conservatorship is when a court appoints someone to manage financial matters.
Usually the court action is brought as a combined “guardianship and conservatorship” action.
After all, if one is legally incapacitated, then a full range of fundamental decisions likely needs to be made.
The court monitors the appointed guardian/conservator going forward, as one individual is typically appointed to fulfill both roles.
There are three big downsides.
It can be expensive, it exposes your personal, health care, and financial circumstances to the public, and the person appointed is not your choice.
Nothing to like about that.
Fortunately, powers of attorney remove these unnecessary and unpleasant consequences.
You can explain your wishes.
If you choose an agent in advance, you can have a conversation regarding what you expect.
This can provide peace of mind for loved ones.
You can utilize a comprehensive power of attorney.
Your needs may change.
Your power of attorney should reflect these changes.
You can clarify your intent.
A power of attorney is especially important for health care decisions.
If you become incapacitated, you cannot explain your treatment wishes.
Creating a health care power of attorney and discussing your choices with your agent now will remove any unnecessary and stressful guesswork later.
You can avoid delays.
You can even include powers for potential “Medicaid planning,” if lawfully protecting assets in the event of a nursing home stay is a concern for you.
Regardless your incapacity concerns, work with an experienced estate planning attorney to set up your power of attorney before incapacity strikes.
Reference: Recently Heard (Jan. 30, 2020) “6 Reasons to Choose a Power of Attorney”