“A power of attorney, similar to a last will and testament, is a powerful document that must be created before it becomes necessary.”
All too often, people wait until it’s too late to execute a power of attorney. It’s uncomfortable to think about giving someone full access to our finances while we are still competent. However, in many states, a power of attorney can be created that is fully exercisable only when needed, according to a useful article “Power of attorney can be tailored to circumstances” from The News-Enterprise. Some estate planning attorneys believe that the power of attorney, or POA, is actually the second most important estate planning document after a will. Here’s what a POA can do for you.
The term POA is a reference to the document, but it also is used to refer to the person named as the agent in the document.
Generally speaking, any POA creates a fiduciary relationship, for either legal or financial purposes. A Medical or Healthcare POA, known as a Health Care Proxy in New York, creates a relationship for healthcare decisions. Sometimes these are for a specific purpose or for a specific period of time. However, a Durable POA is created to last until death or until it is revoked. It can be created to cover a wide array of needs.
Here’s the critical fact: a POA of any kind needs to be executed, that is, agreed to and signed by, a person who is competent to make legal decisions. The problem occurs when family members or the spouse do not realize they need a POA until their loved one is not legally competent and does not understand what they are signing.
Incompetent or incapacitated individuals may not sign legal documents. Further, the law protects people from improperly signing, by requiring two witnesses to observe the individual signing.
The law does allow those with limited competency to sign estate planning documents, so long as they are in a moment of lucidity at the time of the signing. However, this is tricky and can be dangerous, as legal issues may be raised for all involved if capacity is challenged at a later time.
If someone has become incompetent and has not executed a valid power of attorney, a loved one will need to apply for a guardianship to manage his/her financial affairs. This is an expensive, time-consuming court process that leads to the court being involved in many aspects of the person’s life. The basics of this process: three professionals are needed to personally assess the “respondent,” the person who is said to be incompetent. The respondent loses all rights to make decisions of any kind for themselves. They also lose the right to vote.
A power of attorney can be executed quickly and does not require the person to lose any rights.
The biggest concern about executing a power of attorney is that the person is giving an agent control over their money and property. This is true but, in certain states, the POA can be created so that it does not hand over this control immediately.
This is where the “springing” power of attorney comes in. Springing POA means that the document, while executed immediately, does not become effective for use by the agent until a certain set of conditions are met. The document can be written, for example, to state that the POA becomes effective if the person in question is deemed mentally incompetent by a doctor. The springing clause gives the agent the power to act if and when it is necessary for someone else to take over the individual’s financial affairs.
Having an estate planning attorney create the power of attorney that is best suited for each individual’s situation is the most sensible way to provide the protection of a POA, without worrying about giving up control while one is competent.
Reference: The News-Enterprise (Feb. 24, 2020) “Power of attorney can be tailored to circumstances”
