There are law firms that specialize in estate planning work. When counseling clients on the basics of estate planning, lawyers often recommend having three documents in place:
- A simple will
- 2. A Durable Power of Attorney
- 3. A Health Care Power of Attorney
A simple will is just that — directions to those that follow you on how your assets should be distributed and by whom. Having a simple will properly executed won’t necessarily avoid the necessity of probating your estate, no matter how big or small, but it will help things go more smoothly. A will is effective only upon your death.
Power of Attorney
The powers of attorney are legal documents your family and friends may need to assist you while you are living. For example, imagine you are leaving work and you trip down the stairs on your way out. You hit your head on the concrete below. A passerby calls 911, you are rushed to the hospital and attended to. But you are unconscious, and will likely remain that way for a few days or even weeks to come. You are incapacitated. Hopefully you have a health care power of attorney so your family or dear friend (if not a spouse) can talk to doctors on your behalf.
A power of attorney will not help them take care of the other important things going on in your life.
- Do you pay rent or have a mortgage?
- Are you in the process of buying a house or a car?
- Do you run a small business and manage your own books?
Imagine your incapacity goes on for much longer than anticipated, perhaps months. You need to be moved home, or to a rehabilitation facility. Your home needs modifications, you need a temporary guardian or conservator to manage you and your affairs.
A health care power of attorney will not allow your family or friend to manage any of this on your behalf. Even your spouse will be limited as to what he or she can do when it comes to your financial affairs or taking control of or making decisions for the care of your person.
If you do not have a power of attorney in place, a court will need to make a determination on your incapacity and appoint a person to act on your behalf. This takes weeks, maybe longer.
Many people are afraid of drafting a power of attorney thinking the person you name can step in and start accessing your accounts without your consent. A power of attorney can be drafted in a few ways. It can grant authority upon its execution (your signing). Or, it can be drafted to only grant authority when a particular person – a named physician – determines you are incapacitated or when a court determines you are incapacitated.
Contact an Attorney
Many attorneys will recommend you grant authority upon signing, but then don’t share the document. Tell your named agent where to find it in the event they need it. The attorney who drafted it should retain a copy. Keep a copy with your will and health care power of attorney. This is a reasonable alternative that avoids the determination from a court or physician of incapacity and allows your trusted agent to step in and take action when needed.