You may have seen a Will in action before. If an elderly relative for example, passed on, and they had a Will, the executor of their Estate may have met with a lawyer sometime after the funeral to review the document. They discussed next steps, and then that Executor was in charge of using the Will as a guidepost for how to close and distribute the possessions in that person’s Estate.
Yet what happens when you are still alive, but unable to handle your own affairs? What if an accident, an injury, or an illness renders you incapable of calling your own shots about your financial affairs or your medical care? Your inability to manage your affairs may be temporary, or your health may be on the decline with no chance of improvement.
We cannot always predict those situations, but we can put Powers of Attorney in place. A Power of Attorney is a document, signed by you while you are still well and capable of giving instructions, outlining who has authority to make decisions for you if you can no longer do so. The person or people you name to act on your behalf is known as your Attorney. Your Attorney(s) generally derives their authority to act from two sets of documents, and there are important things to note before you decide who may get to be in control.
Power of Attorney for Property
A Power of Attorney for Property gives a selected individual or individuals full control over your property, aka your assets. This can be wide-ranging, and it can include real estate that you rent or own, your vehicle(s), your bank accounts, and all of your possessions.
A Power of Attorney for Property can either be limited in scope, such as authorizing a person to sell a house or a vehicle, or it may be an ongoing Power of Attorney if you can no longer make decisions on your own. You are effectively giving authority to the person to act in your place and allowing them to make decisions with your assets as you would see fit.
Your Power of Attorney is effectively acting as your financial manager, and so you need to trust the decisions that you will be making. If you need advanced private care, for example, they may be tasked with paying for that care from your funds, and so you want someone who will make the decisions that you would have made.
Power of Attorney for Personal Care
Similar to a Power of Attorney for Property, a Power of Attorney for Personal Care can make decisions related to your medical care and wellbeing. While the Attorney in charge of property may fund additional care, the Power of Attorney for Personal Care is tasked with selecting that care.
The person tasked with your personal care can make decisions about your health care, your meals, your clothing, your grooming, and anything else that may be involved in your personal care. Again, this may only be for a short period, or it may last for much longer if you are permanently incapacitated. If your Power of Attorney documents do not set out specific restrictions or instructions, your Attorney will have broad discretion to determine what personal care you receive, provided that such decisions are made in your best interest.
Being an Attorney for Personal Care comes with one additional responsibility which is incredibly significant. At the end of your life, you can task them with making the decisions about what sort of care you want in your final days and hours. Do you want every life extending measure possible? Or would you prefer that any medical professionals let things happen naturally? These are difficult choices that we do not want to think about, but they can be assigned to your Attorney. By clearly outlining your specific wishes in your Power of Attorney, you can alleviate potential stress or uncertainty for your Attorney, ensuring they are better equipped to make decisions aligned with your preferences.
Responsibilities of an Attorney
Acting as someone’s Attorney is a significant responsibility. The person who grants you Power of Attorney is expecting you to act with the same responsibility as they show in making their decisions. The position may be paid, or it may not be, but either way you’re displaying a standard of care as someone highly capable of making those decisions.
Power of Attorney situations can also be highly complicated. You cannot always plan in life for when you may need someone to act on your behalf. For example, you may be in a state of denial about your condition, or you may have trouble comprehending why you cannot manage your own affairs, so your Attorney would have to deal with that as well.
Your Attorney is not responsible for your debts, but they are responsible for the decisions that they make. For example, if you owed money when they took control, that will not be held against them personally. However, if there have been significant losses because they are mismanaging your funds, they may ultimately be liable for the decisions that they make.
How do you select your Power of Attorney
You can appoint multiple people as your Attorney but remember that they may need to work together to make decisions. Ideally you should have a succession of people in consideration – if your first choice cannot fulfil their responsibilities when needed, then you have a backup person in place who you trust equally.
Your Attorney needs to be someone who you trust, but who also has the common sense and professionalism to be able to handle that level of responsibility. Are they diligent with financial matters that they can handle yours? Is this someone you could rely on in a time of crisis? Do you trust them to act in your best interests? Will they likely be able to serve when they may be needed to do so?
Final Thoughts
People do not like to think about death, nor do they ever want to have to think of themselves becoming incapacitated and unable to make their own decisions. Yet drafting a Power of Attorney for Property and for Personal Care is the best way that we can have control of our worst days ahead and ensure that decisions are made by people who know our wishes.
Your Power of Attorney documents can be drafted at the same time as your Will and can form part of your estate plan. Working with a lawyer means that everything will be properly drafted and executed, and stored securely should it ever be necessary to use. Our estate lawyers help our clients take control of their affairs while they are able to do so. Contact our office today to set up a consultation.