There are a number of different estate planning documents that are easily confused, including “Power of Attorney.” Let’s get a look at the different types of “Power of Attorney,” and what they do.
Of the estate planning documents, most people have heard of a will and some have a health care proxy. The Power of Attorney is effective while you are still living, and is also known as a “Durable Power of Attorney” because it is effective, or durable, even after you become incapacitated. Your will only becomes effective when you die.
The Times Herald says in the article “Powers of attorney good for life and beyond” that there are two general types of powers of attorney, one for financial matters and the other for health care matters. They shouldn’t be combined in a single document, because they have different legal requirements. Unless they say otherwise in the document, powers of attorney don’t expire until the creator does. However, there are a few powers in both financial and health care powers of attorney that can survive the person who created the document.
The person who signs a financial power of attorney is called the principal. The person granted authority to act on behalf of the principal, is the agent or the attorney-in-fact. Without a valid executed financial power of attorney in place, if you become mentally disabled, your family would have to file for a probate court supervised conservatorship to have someone handle your property and financial affairs.
With a properly drafted durable power of attorney for health care (or health care power of attorney), you can avoid a guardianship and instead have the health care agent you selected make decisions for you when you are unable. Without a valid executed health care power of attorney, if you become mentally disabled, your family would have to file for a probate court supervised guardianship to have someone handle your care, custody and medical and mental health care treatment decisions, like where you’re going to live and who’s going to be the primary caregiver.
Some attorneys will set expiration dates in powers of attorney, such as five years, after which the power of attorney (POA) will expire and will no longer be valid. In many of these cases, it’s common for the creator of the POA to not know that the form was expired. You can typically revoke powers of attorney at any time, if you aren’t mentally disabled. Powers of attorney expire when you do.
You can include in your health care power of attorney the power to make an organ donation. You can also include the authority to resolve a conflict between the terms of your advance health care directive or living will and the administration of means necessary to ensure the medical suitability of the anatomical gift. If your health care POA says that these anatomical gift powers remain exercisable after your death, then the powers continue after your death and aren’t revoked.
An estate planning attorney can help you create all the documents you need, to ensure that you and your family are protected, while you are living and after you have passed. The idea is to do all the planning and make as many of the decisions as you can before anything occurs.
Reference: The Times Herald (December 21, 2018) “Powers of attorney good for life and beyond”