In Case Something Happens
Power of Attorney – What is it and do I need it?
Whenever we have a client who requests a simple will or trust, we almost always recommend a power of attorney and advance medical directive as well. A will or trust covers the distribution of your assets when you’re dead, but a power of attorney covers your financial and legal affairs while you’re alive in the event that you become incapacitated.
A power of attorney pre-emptively designates a person or person(s) to act as your legal agent in the event that you become incapacitated. It grants them a broad spectrum of powers to act in your stead including the power to make significant legal and financial decisions on your behalf. For this reason, it is important that you trust the person that you designate as your agent. It is equally, if not more important, that you have a power of attorney because the court gets to decide who will act on your behalf in making these decisions if you become incapacitate and do not have a power of attorney.
In addition to being able to choose your lawful agent through a power of attorney, you avoid the excessive cost of having the court appoint a guardian or conservator.
Durable POA vs. Springing POA
The primary difference between a durable power of attorney and springing power of attorney is when the document becomes effective. A durable power of attorney grants the designated agent the powers laid forth immediately effective upon execution. This means that the agent may act on behalf of the other person immediately regardless if whether that person is incapacitated or healthy. The advantage to a durable power of attorney is that the agent may make immediate legal and financial decisions as soon as the other person become incapacitated – often due to some sort of emergency health event.
A springing power of attorney, however, does not become effective until some other event occurs – usually the incapacity of the author – hence it ‘springs’ into action. A springing power of attorney usually includes language to indicate that it will become effective upon the incapacity of the author as determined by a physician or multiple physicians. The problem here is that it can be time-consuming to obtain the written attestation of one or more physicians before the lawfully designated agent may make important (and often urgent) financial or legal decisions on behalf of the author. It also opens the door for potential conflict among loved ones as to which physician(s) is qualified to render the opinion and whether the power of attorney has truly been triggered.
The bottom-line with a power of attorney is that you should only designate someone that you trust with your life because, if you are incapacitated, that person is authorized to act on your behalf as if they were you.