Happy New Year everyone!
This January instead of making the usual, ordinary resolutions to lose weight and exercise more, I’m going to devote myself to an equally important project. I’m going to enlist the help of my attorney and make sure all my personal documents are up to speed.
According to Elder Law Attorney Katharine N. Bernstein of Shoreline, probably the most important document most people need is a power of attorney (POA). In brief, power of attorney is granted to an “attorney-in-fact” or agent to give that individual the legal authority to make decisions for an incapacitated “principal.”
Why is POA so important?
A power of attorney is important for many reasons but foremost it designates who will make decisions for you if you cannot. It also outlines your desires and it gives the POA the tools to follow your directions.
“Inevitably, the less you plan, the more of a crisis and family insanity will ensue,” observed Bernstein.
Most people simply do not like thinking about these “things.” Also, people worry that designating a POA will take away their powers to make their own decisions. “That is why it is important not to have a catchall POA that is too general,” said Bernstein. “The idea is to define or put a scope on what jobs and powers the POA has.”
Besides, adds Bernstein, these days a general POA form copied off the Internet probably would not pass muster in court. For example, there has been so much fraud in this area that financial institutions probably would not honor this sort of document. “They want to see that a an attorney was involved in drafting the POA and that it is specific and protects the client,” said Bernstein.
Washington State splits durable power of attorney into two parts: financial and health care. It could be one person or a different individual for each POA. For example the person in charge of finances makes sure the patient’s housing, doctor bills and medications are paid for.
When should I get a POA?
Anyone and everyone should have this document, explained Bernstein, due to the fact that crisis and accidents happen all the time. This is the only way to see that your specific wishes are carried through.
Another big reason to get your POA taken care of is expense. If you don’t have one and the court gets involved, the process could eat a $10,000 bill.
Here is the breakdown. Bernstein said that with a bit of preplanning it probably costs $200 to $300 to get a POA through an attorney. However, if you don’t have one, the court may decide that the family file a petition for a POA. In the interim while the court decides if the petitioner is a good fit, a guardian ad litem must serve as the advocate. After all the fees are added up, it can cost the family unnecessary expense and unnecessary delays in following the individual’s wishes.
Who should I ask to be my POA?
“When I counsel clients I suggest they designate someone they trust, who is available to help them make decisions and take care of business such as go to the bank and accompany the client to doctors’ appointments,” said Bernstein.
“It’s about trust, ability and availability,” emphasized Bernstein. “If you plan ahead the POA knows what you want and has the authority to do it. This takes a huge burden off the kids and ultimately gives the individual more control.”
Here are a few more details about power of attorney:
- They must keep detailed records
- They are normally paid a set amount or on a predetermined pay scale.
- The POA can be a spouse, adult child, relative or trusted friend.
- This person must act in good faith on behalf of the principal at all times.
- Another trusted individual needs to know where the document is kept and who the POA is.
- The document can be voided and terminated a number of ways including following the procedure designated in the original document.
- If the attorney-in-fact dies and the principal has not named an alternate, the POA document is also terminated.
Protecting the POA Document
If the principal has selected an attorney-in-fact and believes that the power of attorney document may be challenged, the principal can do the following things to protect the document:
- Make a videotape of the power of attorney statement and the principal’s intent to sign the document. Keep this video with the document. It should be noted that any behavioral or verbal quirks in this tape can be used against the power of attorney document as evidence of the principal’s incompetence.
- Obtain a doctor’s statement at the time the power of attorney is signed regarding the principal’s state of sound mind.
- Sign the document with multiple witnesses present regardless of state requirements. These individuals can later testify to the principal’s knowledge and voluntary signing of the document.
- Visit a lawyer to have the document reviewed so that the lawyer can testify to the principal’s mental competency if needed.
Do you have a power of attorney document?