By Charles J. Moore, Attorney
A power of attorney is a legal document that allows a principal (one person) to allow another person (an agent or an attorney-in-fact) to make healthcare and/or financial decisions for them if they cannot make those decisions themselves.
Powers of attorney are a cornerstone of any estate plan I create for clients.
This article dives a little deeper into why power of attorney documents are so important for a person to have.
#1 IF YOU BECOME INCAPACITATED AND DON’T HAVE A POWER OF ATTORNEY YOU CAN’T CREATE ONE
A person creating a power of attorney must have legal capacity to do so. That is, they must understand what powers they are giving to another person, they must be able to identify the relationship of that named person to them, they must know what assets they have, and this is among other questions they must be able to answer.
A person who does not have capacity cannot create a power of attorney. Someone must file a petition for guardianship in the county in which you live to be appointed, after a hearing in front of a judge, as your guardian (a person appointed to be legally responsible for and to manage an incapacitated person’s affairs) and often also appointed as conservator (a person appointed to manage the financial affairs of an incapacitated person).
#2 WITHOUT A POWER OF ATTORNEY YOU LOSE THE RIGHT TO NAME WHO YOU WANT TO MAKE DECISIONS ON YOUR BEHALF
When you visit a power of attorney lawyer St. Peters, Missouri, you get to name who you want to be in charge and who would be the alternate(s) if your first choice cannot assist you. Think about how important it might be to name a specific person in your life versus the right of anyone to seek to be appointed as your guardian / conservator.
Like so much of estate planning, creating a power of attorney is about having control over who is in charge, which creates peace of mind. Think about how important that might be if you have multiple children and prefer one or two of them to make decisions for you.
#3 CREATING A HEALTHCARE POWER OF ATTORNEY WITH AN ADVANCED DIRECTIVE MEANS YOU ARE LEAVING INSTRUCTIONS TO YOUR FAMILY FOR THE END OF LIFE.
An advanced directive, also called a healthcare directive or living will, is a set of instructions to your power of attorney in the event that you are in a coma, terminally ill and/or seriously incapacitated such that you cannot tell your treating physician how to proceed to treat you.
In an advanced directive you are electing procedures to be not given (withheld or withdrawn) if your treating physician does not think they will lead to a significant recovery. Imagine if you could no longer make decisions for yourself because you were in a coma.
Without an advanced directive, your family member(s) may struggle to withhold medical treatments which will keep you alive but with no quality of life. Your family, like most families, will struggle to make the right medical decisions without instruction. The advanced directive leaves nothing to guess and therein lies its power.
#4 EVEN IF YOU’RE INCAPACITATED, LIFE GOES ON…
Every day we speak to people regarding our personal affairs, we provide passwords and usernames to prove who we are and we have to spend time every few weeks paying bills, doing banking, calling insurance companies and doctor’s offices, hospitals, government agencies. With a power of attorney in hand, you’re naming someone to do that for you if you can’t. This ensures that you don’t miss paying bills, miss filing a tax return, miss receiving a pension or Social Security payment and of course, everything else.
#5 CREATING A POWER OF ATTORNEY LEAVES YOUR FAMILY PREPARED
Once you’ve created a power of attorney document, the real “power” is being able to sit down with your family and prepare for incapacity. In short, it’s a very good conversation starter between, usually, parents and their grown children. The opportunity to face the inevitable, to talk openly about your desires if you can’t care for yourself and to review the document which gives the power to you chosen agent. Thus, the act of creating a power of attorney does not just plan with the document. Rather, it also plans with the chance to have an open and frank discussion with family.
Powers of attorney have so many other great benefits. Perhaps one of the best things about a power of attorney is that they are not all that expensive to create, especially when you consider their importance.
Charles J. Moore is an estate planning and elder law attorney and the founder of Legacy Law Center, which has offices in O’Fallon and St. Charles. He can be reached at (636) 887-5297.
Visit his website at www.legacylawmissouri.com.
The information expressed herein should not be construed by the reader to be legal advice, nor relied upon as legal advice, as it is solely for informational purposes.