The interesting thing about life is that we don’t know what will happen next. We all like to believe good things are coming down the line, but the truth is that sometimes when we least expect it, we lose control of our lives. Things happen that we never expected… bodily injuries, accidents, mental illnesses, loss of thinking capacity. A need for help with the daily activities of living can happen to anyone at any time. If you become incapacitated, who will make your everyday decisions? Find the answer to the question, “Why Do I Need a Power of Attorney?”

A power of attorney protects you by giving you a choice about who you trust. If you become incapacitated or incompetent due to an accident or health failure, your power of attorney will make decisions about your healthcare, your assets, and make day-to-day decisions for you. 

If you do not have a power of attorney, 

• Your friends and family could end up fighting in court to have you declared incompetent.
• A court could appoint a guardian for you that you would never have wanted. 
• Your estate could all go to pay for Medicaid Recovery Efforts, probate, and court costs because there was no plan.
• A court-declared guardian may not have the power to plan for your care or your estate properly.  
• Without a power of attorney designation, you have no personal agent to care for you through whatever may come. The court decides when or if you need a guardian.

There are several types of power of attorney agreements. All must be signed in front of a notary public to be valid. In these types of contracts, you are the principal and the person you are trusting with your healthcare or financial decisions is called the “agent”.

Why Do I Need a Power of Attorney?

General Power of Attorney 

With this type of power, the agent (the person you trust) can do many of the things that you can do personally, like opening bank accounts or managing household finances. However, this type of power of attorney is terminated upon your incapacitation or death so it is not useful for anticipating a situation in which you would need long term help with decisions or someone to manage your finances if you are declared incompetent or incapacitated.

Durable General Power Of Attorney

The agent in a durable general power of attorney contract can act on the principal’s behalf. It includes a durable clause that maintains the power of attorney after you become incapacitated.  Unless you retract your documents legally, a durable general power of attorney lasts for your lifetime and the agent has complete authority to make decisions on your behalf. 

The agent is not limited in any way when seeking the best outcome for whatever situation you find yourself in. The only things they cannot do for you are get married, vote, and sign your will. Appointing a durable power of attorney lets you make the decision about what is best for you should anything happen. 

No Durable General Power Of Attorney

If you have not made a decision and have no durable power of attorney, your family will have to go to court to have a guardian declared for you which can be an expensive and long process in which family and friends can argue and vehemently disagree. They have to go through the pain of a courtroom drama to have you declared incompetent. You have to listen to their testimonies about your mind failing.

Once a guardian is appointed, they have very limited powers with onerous legal oversight by the court who appointed them. 

With the Durable General Power of Attorney, the agent has broad powers to make the decisions in your best interest. Without this, you are putting limits on the people who will care for you by forcing the court to choose a guardian who will be under heavy judicial oversight.

Medical Or Healthcare Durable Power Of Attorney

This is a different type of durable power of attorney that specifically gives healthcare decision making power to someone else. The “durable” part means that they can continue making decisions for you whether you are incapacitated or incompetent. 

If you are sick and need blood transfusions, surgery, chemotherapy, stomach tubes or respirators, someone has to sign off that you agree to the treatments. A healthcare durable power of attorney allows the agent that you appoint to make decisions for you based on what you would like to see happen in these situations.

Conventional/  Limited Power Of Attorney

In this instance, the agent you appoint has some limited area of authority in your life such as:

• Authority to sell real estate or assets
• Authority to set in motion certain healthcare events
• Authority to hire personal care 
• Authority to possess custody of children

Springing Power Of Attorney

You can also set a power of attorney to take effect with a certain event, such as in the event you become incapacitated. This is called a “springing power of attorney.”  However, in this process, you may still have to go through a court process to be declared incompetent before it could legally be enacted. 

If you want your agent to help you by giving you a seamless coverage of care for whatever you need help with, it is better to go ahead and make a plan that involves a durable general power of attorney that begins now. If you trust this person, there is no reason not to start trusting now rather than leaving it for courts to decide when or if you need the power of attorney to go into effect.

When a Power Of Attorney is Invalid

Once you pass away, the power of attorney is no longer valid and banks may freeze accounts. At this point, the property of your estate is dealt with by the executor named in your will, or by the personal representative nominated by the probate court. It is important that you do have a will and not expect that whoever cares for you while alive will have the authority to continue to do so after your death.

Seek Help

If you are wondering how to get started planning for your future, seek out a knowledgeable estate planning attorney who can help you move forward. Making an estate plan includes powers of attorney, a will, and planning for eventualities that you may not think of without the legal training an attorney possesses. An experienced lawyer will understand how to make sure that you are cared for by the friends and family who love you, while maximizing your estate assets to care for yourself and your heirs.