IN THE NOVEMBER/DECEMBER ISSUE OF SISTAH’S PLACE MAGAZINE, I CONTINUE THE REVIEW OF THE ESSENTIAL ESTATE PLANNING DOCUMENTS BY DISCUSSING THE BASICS OF POWERS OF ATTORNEY.
SISTAH’S PLACE MAGAZINE CELEBRATES WOMEN HAVING AN IMPACT THROUGH ENTERTAINMENT, INSPIRATION, AND EMPOWERMENT. GET YOUR COPY HERE.
Do You Have A Power of Attorney?
I have found most people are familiar with the term “power of attorney” even if they don’t quite know what it means or think they need one. I suggest that every person 18 years old or older needs two powers of attorney. With that in mind, let’s answer the questions, “What exactly is a power of attorney?” and “Why do you need two?”
What exactly is a power of attorney?
A power of attorney (POA) is a document which allows you to give short-term or long-term authority to another person to step into your shoes and make decisions on your behalf when you are physically or mentally incapacitated and therefore unable to make decisions for yourself. The person you appoint is known as your agent or attorney-in-fact. This person is not necessarily authorized to practice law however this title does designate her as a fiduciary. As a fiduciary, she is held to a strict standard of honesty and loyalty and has an obligation to act in your best interest when making decisions on your behalf. If the fiduciary breaches her obligations she can be held personally liable for damages incurred.
Why do you need two powers of attorney?
You need at least two powers of attorney because not all powers of attorney are made equal. The two most important powers of attorney are a POA for Property and a POA for Healthcare.
Power of Attorney for Property
Within a POA for Property you are giving an advance specific or broad expression of how you want your property to be managed in the event of your incapacitation. This is your opportunity to ensure that your everyday property obligations are being met such as: buying groceries, making bank deposits and withdrawals, paying your monthly recurring bills, renewing your lease, picking up mail and packages, etc. Your agent has an obligation to manage your property based on the authorities you have given; to act in your best interest to safeguard your property; to keep accurate financial records, and to provide a complete and periodic accounting for all money and property coming into as well as going out of her possession on your behalf. At all times your agent must keep your property separate from her personal property. To prevent confusion, when acting on your behalf your agent should always sign your name followed by her name and the words “as agent” for example, Jane Doe by Pam Smith as agent. This signifies to the world that she is not acting in an individual capacity but rather on your behalf.
In order for your POA for Property to be valid: 1) it must be in writing, 2) you must have capacity at the time of signing, 3) there must be no undue influence, 4) you must sign and date it, 5) in the presence of two disinterested witnesses who are age 18 or older, and 6) and in the presence of a notary who will sign, date and stamp it.
Power of Attorney for Healthcare
Within a POA for Healthcare you are giving an advance specific or broad expression of how you want your healthcare to be managed in the event of your incapacitation, including the end of your life. This is your opportunity to give clarity and state what medical records and health information you want to make available and to whom; to state which types of healthcare treatment you want and more importantly which types of healthcare treatment you do not want, and to state which matters most to you: your quality of life or your quantity of life. This document allows you to ensure your wishes and desires will be followed at a most critical time in your life. It preserves your dignity by allowing you to choose an agent that has an obligation to respect, follow and uphold your decisions.
In order for your POA for Healthcare to be valid: 1) it must be in writing, 2) you must have capacity at the time of signing, 3) there must be no undue influence, 4) you must sign and date it, 5) in the presence of at least one disinterested witness who is age 18 or older and not part of your medical healthcare team and facility provider or a relative of your healthcare team or healthcare facility provider.
Final Thoughts
A POA may be revoked at any time by notifying your agent in writing and collecting any distributed copies.
Powers of attorney are essential documents that everyone needs because at some point in our lives due to an illness or injury we may not be able to make decisions on our own behalf. So why not plan ahead and ensure your desires concerning your property and healthcare are being followed and not someone else’s.
