Our attorneys are prepared to discuss with you the importance of preparing a Power of Attorney and Living Will, also known as an Advance Directive. These documents will allow your family member, friend or trusted financial advisor to assist you with your financial and health care decisions or transactions in the event of a disability, or if you are otherwise unable or unavailable to make those decisions or transactions on your own.
Power of Attorney
Our attorneys will discuss the different types of Powers of Attorney. The two types of Powers of Attorney available are: Limited Power of Attorney and General Power of Attorney. The Limited Power of Attorney deals with a specific asset, such as a bank account or a specific piece of real estate. The General Power of Attorney gives the attorney in fact control over all of your financial assets, including the following: real estate, stocks, bonds, bank accounts, retirement accounts, cars, filing of your tax returns, access to your safe deposit box, control over any business interest, and the ability to make gifts for estate planning or Medicaid planning purposes.
In this document, you can also choose when the Power of Attorney becomes effective. There are three different options as to when the Power of Attorney can come into effect: Durable, Springing and Lapsing. The Durable Power of Attorney is effective as soon as you sign it and continues to be in effect after you become incompetent. This POA is the one that is most recommended. The Springing Power of Attorney springs into effect when you become incompetent, however, the attorney-in-fact may have difficulty proving to a bank or other institution that you are disabled. The attorney-in-fact may need a doctor's affidavit or court order, and having to get a court order would defeat the purpose of having a POA. The Lapsing Power of Attorney ceases, when you become disabled or incompetent.
When choosing an attorney-in-fact it is important to choose someone who you trust due to the powers that they have over your financial assets. If you are choosing someone other than your spouse and you do not feel comfortable giving the document to them, you can put it in a safe place in your house and let them know where it is in case they need it. You should not put the Power of Attorney document in your safe deposit box because the attorney-in-fact may not be able to gain access to it. It is also important to consider naming an alternate attorney-in-fact in the event the representative predeceases you, or is otherwise unavailable or unable to continue acting as your attorney-in-fact.
Further, a Power of Attorney is necessary even if you are married and hold all assets jointly with your spouse. Your spouse will still need to a Power of Attorney to sell any real estate and access your retirement accounts (pension, 401k and IRA).
Living Will / Combined Advance Directive
Our attorneys will also discuss with you the importance of preparing a Living Will, also known as a Combined Advance Directive. A Combined Advance Directive designates a health care representative, as well as alternate representatives, to make medical decisions on your behalf when you do not have the mental capacity to make your own decisions. In this document, you will direct your health care representative to continue, withhold or withdraw, life-sustaining treatment under certain circumstances. Medical conditions in which you may or may not want life sustaining treatment to be given are: a terminal illness such as cancer; becoming permanently unconscious; or conditions which are not necessarily terminal but result in you losing some faculty which you value highly, such as advanced Alzheimer’s disease, advanced dementia, Lou Gehrig’s disease or Parkinson’s disease. In this document, you will provide guidance to your health care representative as to whether or not you want to be treated with a respirator, artificially provided fluids and nutrition, and CPR if you have any of the above referenced medical conditions.
It is important to have a properly drafted and executed Power of Attorney and Living Will for those unforeseen circumstances, otherwise your spouse or family member will need to hire an attorney to file a Complaint for Guardianship in order to make your financial and health care decisions on your behalf. In the event a Guardianship needs to be filed, the court will then appoint an attorney to represent you, (the alleged incapacitated person). In addition, two doctors will have to submit affidavits and a court appearance will be required for the person seeking to be your guardian. As a result, the cost of a Guardianship action could cost several thousand dollars.
In the event a family member becomes incapacitated and does not have a valid Power of Attorney, we can assist you in filing a Complaint for Guardianship over the person and property. At the Guardianship hearing, the Court will determine whether or not your family member is incapacitated. In the event the Court finds that your family member is incapacitated they will then determine whether or not you are an appropriate person to be the Guardian of your family member. Once you are appointed the Guardian of the person and property of your family member, you will then be responsible for making all of their personal, medical, and financial decisions. Those decisions must be made in the best interests of your family member.