These statements, and others like them, are frequently heard by attorneys, care facilities and financial planners and they are, for the most part, completely inaccurate. What most people don’t fully understand is that being named in a power of attorney means that you are an agent acting for someone. The document granting these powers is called a power of attorney. The person acting under the authority of a power of attorney is often referred to as an “attorney in fact”.
A power of attorney does not take away an individual’s right to make his or her own decisions. Only a court-ordered guardianship can do that. The person giving the power of attorney remains in complete control of his or her affairs and can revoke the power of attorney at any time. If you feel that your power of attorney is not acting in your best interests or following your directions, you can take away their authority and appoint someone else to take over.
While a health care power of attorney has access to information at any time, any decisions must be made by the individual him or herself until they are unable to do so. This includes decisions about living arrangements. A child acting under a power of attorney cannot force a parent to move into assisted living or prevent them from leaving a nursing facility. A spouse acting under a health care power of attorney cannot make treatment decisions for his or her spouse over that person’s objections. Absent a statement from a physician that the individual is unable to make decisions and a court appointment of a guardian, an individual can make all treatment and living arrangement choices for him or herself.
A financial power of attorney can work with the banks and financial advisors and pay bills, but you retain the ultimate authority to control how your money is managed and spent. If you are serving as power of attorney for someone who is not able to manage his or her own finances, you cannot prevent them from spending or transferring money without a guardianship. Unfortunately, a guardianship sometimes becomes necessary.
Powers of attorney are among the most useful documents in any estate plan. When everyone involved has a clear knowledge and appreciation of their respective roles and responsibilities, powers of attorney can provide the necessary authority for trusted family members or friends to assist with financial transactions and be your advocate with doctors and hospitals. Often people begin acting under a financial or health care power of attorney without fully understanding what that means. By including your chosen individuals in the planning process, your attorney can help advise them about their duties in advance of any crisis that may require them to act. This simple step can go a long way to avoiding future misunderstandings and disagreements. In addition, if your attorney in fact establishes a good working relationship with your attorney, they may be less hesitant to seek the attorney’s advice if problems arise. This guidance can be invaluable and can make acting as an attorney in fact less confusing and intimidating.
Call 574.232.3538 for an appointment to discuss your questions about estate planning for your loved ones.
Disclaimer: The THK Legal Blogs are for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon investigation of specific facts. You should consult an attorney for advice regarding your individual situation.