One of the most important planning issues is how to deal with your affairs, legal and financial, if you become unable to do so yourself. You may have lots of everyday affairs that you handle. This probably includes banking, paying taxes, dealing with life and health insurance, signing agreements and contracts for goods and services, buying and selling assets like your home, care and household furnishings. You normally handle all of these duties on your own. In fact, you are the only one who can do these things. For instance, no one can sign your name to a contract but you, and no one can use your bank account except you (unless you have a joint account holder). It is normal and reasonable that you do these things yourself although you might have some help such as a financial advisor, insurance agent, and lawyer. But, what would happen if you became mentally or physically incapacitated and could not do these things? How would your everyday affairs continue without you?
The answer is that your affairs cannot continue, uninterrupted, without you or someone who is legally authorized to handle your affairs for you. You can ensure that your affairs can continue by granting the power to a trusted friend or family member to handle your affairs for you. You do this with a legal document called a Power of Attorney.
A Power Of Attorney is a written authorization, granting power to act for another. The “Principal”(you) designates an “Attorney-In-Fact” or “Agent” (your spouse, family member or friend). Naming someone in a Power of Attorney is similar to hiring an employee to do something for you, however your “Attorney-In-Fact” is usually an unpaid friend or relative. Even so, your Agent (or Attorney in Fact) works for you and handles your affairs under the power you have granted to your Agent. You remain the “boss” and, if possible, tell your Agent what to do. If you cannot tell your Agent what to do, your Agent has to decide what to do. This means that it is important you choose someone who is trustworthy and responsible who can handle the task and make decisions if possible. You will want this person to understand how you think so your Agent will make decisions in a way similar to what you would do.
A Power Of Attorney is “durable” when it is written so it remains in effect even if you are incapacitated, and your Attorney-In-Fact can still carry on your affairs; personal and business (to the extent you granted those powers). Your lawyer will write specific language into your Power of Attorney so it is Durable and will continue to work for you and your Agent even if you are legally and physically incapacities.
If you become incapacitated without an Attorney-In-Fact your family will have to go to court to have a Guardian or Conservator appointed to handle your affairs. This can take a while and may involve significant legal costs and fees. The Guardianship process is also public and others may learn of it and have a window into your personal affairs. A Power of Attorney keeps things private within your family. With a Power of Attorney, you share your rights and powers with an Agent. In a Guardianship, you lose all of your rights and powers to the Guardian. It is much preferable to have a Durable Power of Attorney in place, rather than face the problems of guardianship.
Your Power of Attorney document is one of the most important Life and Estate Planning Tools. You should ensure that you have a comprehensive and well written document. It is important that you see a lawyer who is experienced and knowledgeable with disability planning to ensure you get a very good Power of Attorney written. It is not a simple form, it needs to be tailored directly to your situation and your specific needs.
Keep in mind that the name of the legal planning tool is a “Power of Attorney” but this has nothing to do with your lawyer. You are not giving your lawyer any power (unless you name your lawyer as Agent under your Power of Attorney). The name comes from the older name for an Agent. An “Attorney in Fact” is someone who is authorized to act for another. Your lawyer is a very special type of Agent who can act for you or another in a Court of Law. Your lawyer is called an Attorney at Law. An Attorney in Fact can be anyone. No rules or educational requirements or licensing requirements apply.
See your Lawyer (your Attorney at Law) to help you get a good and valid Durable Power of Attorney put in place for you.