In this column, I will provide useful information to seniors, their families and caregivers, regarding legal topics and current law. You are encouraged to contact me regarding your questions. The topic for this column is powers of attorney, Part 1 of 2.
Did you know that simply being married does not give you the legal right to gain access to your spouse’s medical records or make medical decisions on your spouse’s behalf, even in an emergency? This problem can be resolved through the use of appropriate powers of attorney. A power of attorney is a legal document that grants legal rights and powers by a person creating the document (the “principal”) to another (the “agent” or “attorney-in-fact”) to make decisions on behalf of the principal.
The agent is a “fiduciary,” meaning that the agent is legally required to act in good faith on behalf of the principal. The agent must follow all instructions given by the principal and do what is in the principal’s best interest.
A “durable” power of attorney allows an agent to make decisions even if the principal later becomes incapacitated. This is important if you become incapacitated because of an accident or illness because your agent can then immediately make decisions for you without going to court to obtain a guardianship and/or conservatorship (which will be the subject of another column).
Because power of attorney documents should be custom-tailored to your particular circumstances, they should be prepared by an attorney to ensure that your intentions are clearly expressed and are legally enforceable. This includes determining when a power of attorney should take effect, such as a “springing power” which means the documents will take effect only when a particular described event takes place. A “standing power” takes effect immediately upon signing by the principal.
Notably, a power of attorney does not take away a principal’s right to make decisions. Additionally, a principal may change his or her mind and revoke a power of attorney at any time, provided the principal has the capacity to do so.
People often ask whom should they name as their agent under a power of attorney. The agent should be a trusted individual, which may include a spouse, an adult child, a sibling, a trusted friend or a professional fiduciary. It is always best to learn from the person you want to name as agent, for permission to do so, to ensure that they are willing to accept the appointment. It is also helpful to appoint a successor agent, to serve if your first choice of agent cannot serve due to death, incapacity, resignation or unwillingness to accept the appointment.
In the next column/Part 2: Types of power of attorney documents and agent’s duties.
2018 All Rights Reserved. Villager Publishing |