Powers of Attorney are key components of any elder law plan. These legal documents provide for someone to make your important decisions when you can no longer make decisions due to incapacity. In many ways, powers of attorney (POAs) can be more important than a will. This article will examine several common types of POAs. We will also look at how to use POAs as part of a well designed elder law plan.
Kinds of Powers of Attorney
Financial (Durable) POA – This legal document provides for others to make decisions about your assets when you can’t. For example, Indiana law provides for a durable POA to deal with real property, tangible personal property, retirement plans, banking transactions, business operations, insurance matters, gifting, litigation, family maintenance, benefits from military service, and estate (probate) issues. Think of this document covering any decision other than healthcare decisions.
Health Care POA – This document is sometimes known, as in Indiana, as Health Care Representative Appointment or health care power of attorney. This permits someone to make your healthcare decisions for you. Most states, like Indiana, require the person making your decisions to try and find out what you want done or not done medically. This is true even if you are incompetent. The idea is that you should never completely lose control of your medical decisions. There will be a duty to try to find out your wishes before anything is decided. The value of this document is that your need medical decisions are not held up while try to figure out who needs to make your decisions. With out this document, you would likely need to have someone appointed guardian over you. This can be time consuming and expensive litigation.
Using Powers of Attorney In Your Elder Law Plan
One of the key uses of POAs is to avoid guardianship or conservatorship proceedings. These legal proceedings can be both costly and time consuming. A properly designed and executed elder law plan plans for when you can’t maker medical and financial decisions while you’re alive. Well drafted powers of attorney provide you with the immediate ability to deal with all of your critical decisions regardless of your capacity to make decisions. Another advantage of the POAs over guardianships, at least in Indiana, is that they can be designed to be very flexible to meet your specific needs. They can be drafted to only be legally valid when you need them and not valid when you don’t.
Durable and healthcare powers of attorney are important and complex legal documents. Don’t be tempted to save money by using generic forms from hospitals, nursing homes, or the internet. Competent legal counsel is needed to make sure the powers of attorney are properly designed and executed as part or your overall elder law plan.
Please don’t wait until it is too late. One of your most important choices is who will make your important decisions when you no longer can. Don’t let the court or others make this critical choice for you. Remember that not every attorney handles estate planning and elder law matters. Ask your attorney if he is a member of the National Academy of Elder Law Attorneys (naela.org) If you are missing any of these important elements, then consider contacting your elder law attorney to have your estate plan reviewed.