Powers of Attorney
Powers of Attorney: Name a Friend or Family Member to Help When You Need It
When you are considering your need for estate planning for transfer of assets at death, you should also consider your need for assistance if you are unable to make decisions during your lifetime. This is done through powers of attorney for property and healthcare.
Power of Attorney for Property
In a power of attorney for property, you name an agent to act for you if you are unable to act. This power of attorney can be a general power of attorney, giving the agent authority to act in a broad range of circumstances, or a limited power of attorney, authorizing the agent to act only in special circumstances.
Generally, a standard power of attorney for property provides sufficient scope to your agent to handle almost any of your property matters, except for the power to make gifts, to exercise any powers to appoint to others, and to change the beneficiary designated by you to take at your death under a will, trust, joint tenancy, beneficiary form, or other contractual arrangement. An agent cannot require the trustee of any trust for the benefit of the principal to pay income and principal to the agent unless the power of attorney specifically grants this authority and specifically refers to the trust involved. If you wish to have the agent exercise these powers, you should include specific provisions to this effect in the power of attorney. If you have an estate that will be subject to estate tax, the power to make gifts to your descendants and other persons whom you would wish to benefit will provide an opportunity for some last-minute estate planning even if you are unable to indicate your desire to make these gifts.
Unless otherwise indicated, your agent’s power is effective when the power of attorney is signed. but can be tied instead to a determination by a physician that you unable to give prompt and intelligent consideration to business matters.
You can also indicate in this power of attorney whom you wish to act as guardian of your estate if the appointment of a guardian is required. If no such indication is made, the agent named in the power of attorney will be considered to have been nominated to be the guardian.
The power of attorney terminates at death unless an earlier date is indicated. Only one agent can be named to act at a time, but successor agents are permitted and are a good idea. They must, however, be appointed as successors and not as co-agents.
Power of Attorney for Healthcare
The most comprehensive document for expressing your wishes regarding life-sustaining treatment and enabling an agent to make general healthcare decisions is a power of attorney for healthcare.
In a power of attorney for healthcare, you name an agent to make healthcare decisions. Only one person can act as agent at a time, but successor agents can be named. The power of attorney is effective when you sign it unless another date is provided on which it is to become effective, such as conditioning it on a determination by your physician that you are unable to make prompt and intelligent decisions regarding your healthcare.
The standard power of attorney for healthcare gives your agent very broad powers regarding healthcare decisions, and if you wish to restrict these powers, the restrictions need to be clearly set out in the power of attorney. This power of attorney also provides an opportunity for you to indicate your preferences regarding organ donations and termination of life-sustaining treatment.
The power to make decisions regarding healthcare, organ donation, and termination of life-sustaining treatment is very personal, and you should carefully consider the scope of the authority you want to give your agent. You should also consider whom you want to appoint as agent. Unless you specify otherwise, the person named as agent will also be entitled to act as guardian of your person if such an appointment is required.
Special and Limited Powers of Attorney
If you do not want to give an agent the broad scope of powers provided in the statutory powers of attorney for property and health care, you can give a special or limited power of attorney to an agent. These types of powers of attorney are usually limited in purpose and in time. For example, if you are going to be out of town for an extended period of time, you might want to appoint someone to handle business affairs by providing access to a particular bank account, with access to terminate upon your return. You may also be unavailable for a specific task, such as signing documents to complete a real estate sale and may appoint an agent to handle just this task.
