A Power of Attorney and Its Importance in End-of-Life Planning

What is a Power of Attorney?

In short, a POA simply means a person (principal/grantor) authorizes someone (agent/attorney-in-fact) to make legal and financial decisions for them. This can include anything from paying bills and filing taxes to making healthcare decisions and funeral arrangements. The principal must be of sound mind and capable when they appoint the agent. If a mentally incompetent person signs a POA, the agreement will get deemed invalid.

What types of Power of Attorney exist?

Just like other legal documents, there is no one-size-fits-all option for POA documents. Some people might only need someone for healthcare decisions while another person may need someone to close a deal on a home. The main thing to remember is that your POA must be enforceable and the right type. The main types of POA available are:

Durable

A durable POA allows the agent to keep their POA even if the grantor is mentally incompetent. Normally, POA becomes invalid if the grantor gets deemed incapacitated. With a Durable POA, you will get to decide who makes decisions for you. If you do not have a durable POA set up, the courts will pick your guardian/conservator for you (usually next of kin). A durable POA gives you the option to select who you want to carry out your wishes, so make sure you have a few conversations about your wants before granting it.

Healthcare

A healthcare POA means your agent can make healthcare decisions for you if you are incapacitated, depending on the state. Because different states have different regulations, you will need to work with an experienced attorney to ensure your POA is enforceable. You will also need to take the time to meet with an attorney if you move to a new state as certain provisions may not be enforceable in your new home.

Finally, see if your state will require you to combine your POA with living wills and advanced healthcare directives to ensure all your wishes are met on healthcare. Some states may put certain circumstances in other documents while others will honor the healthcare POA as it is written.

Springing

Named after “springing into action,” a springing POA goes into effect after a major event or date occurs. However, for this POA to go into effect, an event or date must be met for the agreement to become active. Because of the regulations behind this POA, it can be difficult to prove that the grantor is incapacitated. Therefore, this POA is usually reserved for those who know they won’t be able to make a decision when the time comes rather than waiting in the wings like a durable or healthcare POA.

Limited

Limited POAs are commonly temporary POAs. One of the most common reasons we see these POAs utilized is when someone will be out of town when a house they want is closing. This POA allows the realtor to sign the closing agreement and finalize the transaction for their client if they cannot be present. Once this action is done, the agent loses the POA. This POA can also be used for other events, but the regulations and terms behind it are quite specific.

Why is Power of Attorney important for end-of-life planning?

POAs are important for end-of-life planning for a variety of reasons. They ensure your final wishes are taken care of and that you can plan for your family’s future long after you are gone. However, they also come with numerous rules and regulations that vary between states, so it is important that you take the time to consider exactly what you are looking for to ensure you receive the document you want.

Because of the requirements of obtaining a POA, it is integral you sit down with an attorney to perfect your document. Far too often, people find POA templates online that simply will not hold up. An experienced law professional will be able to create the document you need as well as tell you what you can and cannot do. 

To learn more about the right POA for your circumstances as well as other end-of-life planning documents, contact us today.