Power of Attorney: The Basics
One of the most important tools for making sure help will be available when we need it is the Power of Attorney. The idea that we can take care of ourselves and won’t need help is a common one. Whether we were raised that way or simply don’t want to bother anyone with our needs, we resist the idea that we’ll need help. Nevertheless, the day is likely to come when we won’t be able to do everything for ourselves. Our limits might be physical, but they could be mental. Regardless, the Power of Attorney paves the way to allow others to help us with a variety of things, including physical activities, banking, shopping, driving, or paying bills just to name a few.
What Is A Power of Attorney?
The Power of Attorney is a document that gives someone, called an Attorney in Fact, the authority to do certain things for us. We can’t give them more authority than we have. But we can authorize them to do anything for us that we could do ourselves.
Does the Power of Attorney Expire If We Become Incapacitated?
The Power of Attorney should not expire if we become incapacitated. If it is a “Durable” Power of Attorney, the authority we gave our Attorney in Fact will continue after we are incapacitated. This allows our Attorney in Fact to help us regardless of our condition and throughout the rest of our life.
Does the Power of Attorney Extend Beyond Our Death?
The Power of Attorney terminates at the death of the principal. The Attorney in Fact is the “agent” for the principal and will no longer be able to use authority under the Power of Attorney when the principal dies. An Executor or Trustee will be required to take care of things after the principal’s death.
What Power(s) Does The Attorney in Fact Have?
The Attorney in Fact has all of the power(s) described in the Power of Attorney. We want our Attorney in Fact to have all of the Power and authority we can give them. Otherwise, they may not be able to do something for us that needs to be done. If we worry that our Attorney in Fact may misuse the authority we give them, we shouldn’t choose them as our Attorney in Fact. Instead, we should choose someone we trust to do what is in our best interest. The Attorney in Fact’s duty is to do what they believe in good faith to be in our best interest and what we would want them to do. Otherwise, they are acting outside the scope of their authority.
What Powers Should Be Obvious In A Power of Attorney?
In recent years, technology has changed rapidly and so have our laws. With those changes, the provisions of a Power of Attorney must change to keep up. If you aren’t certain that your Power of Attorney includes these provisions, you should consider having it reviewed and changed.
Your Power of Attorney should authorize gifting, estate planning, and asset protection planning. This is important so that your estate distribution and asset protection goals can be carried out. Most people want to protect their assets and to see their assets used to benefit their loved ones. With these powers, your Attorney in Fact can take steps with your estate planning/elder law attorney to accomplish these goals.
Your Power of Attorney should authorize your Attorney in Fact to sign other Powers of Attorney on your behalf. Many financial organizations, such as banks, investment offices, brokerage firms, and other professionals, require their own proprietary Power of Attorney to be signed in addition to the Power of Attorney you created with your estate planning/elder law attorney. By permitting your Attorney in Fact to sign these proprietary Powers of Attorney on your behalf, you are keeping the door open so that your Attorney in Fact can work with your financial advisor, accountant, and bank to take care of your needs.
Your Power of Attorney should authorize your Attorney in Fact to access all of your electronic accounts, assets, and resources. Over the last several years, most people have embraced or, at least, accepted that technology is an inevitable part of our lives. We may have email accounts, online or mobile banking, investment, and credit card accounts. We may have a variety of social media accounts, and perhaps we have health tracking programs. All of these will have access restrictions, and the restrictions may vary from one account or program to another. So it’s very important that your Power of Attorney clearly state that your Attorney in Fact be able to access all of your accounts, apps (applications), programs, and email platforms.
Final Thoughts.
Changes in the law and technology will continue. If your Power of Attorney hasn’t been reviewed in the last 2-3 years, you should have it reviewed and consider having it redone. And every 2-3 years afterward it should be reviewed to be confident it keeps up with the changing times. Contact me to see if your Power of Attorney is up to date and contains the provisions it needs.
