Incapacity planning includes Statutory Durable Power of Attorney; HIPAA Authorization; Medical Power of Attorney and Directive to Physicians. Other documents to consider are appointment of agent for the disposition of remains; Anatomical Gift (organ/tissue donation); and appointment of Guardian in the event of later need.
An important part of estate planning is the power of attorney, which is valid in all states. They give one or more persons the power to act on your behalf. The power of attorney may be limited to a particular activity or general in its application, empowering one or more persons to act on your behalf in a variety of situations. It may take effective immediately or only upon the occurrence of a future event (e.g., a determination that you are unable to act for yourself). These are called “springing” powers of attorney and may give temporary or continuous, permanent authority to act on your behalf. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you.
The person named in a power of attorney to act on your behalf is commonly referred to as your “agent” or “attorney-in-fact.” With a valid power of attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the department of motor vehicles generally will require that the power of attorney be presented before your agent’s authority to sign the title will be honored. Similarly, an agent who signs documents to buy or sell real property on your behalf must present the power of attorney to the title company. The same applies to sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the power of attorney when signing checks for you.
Two types of powers of attorney are common in the estate planning field, namely the medical power of attorney and the durable power of attorney. The medical power of attorney grants the agent the power to make health care decisions for the principal if the principal is unable to make them. Generally speaking, a medical power of attorney would not necessarily be required of spouses in a legally recognized marriage. The agent may exercise their authority only if the principal’s attending physician certifies that, in the physician’s opinion, the principal lacks the capacity to make health care decisions. The second type of power of attorney is the durable power of attorney. This instrument grants authority to a designated agent to manage the principal’s property on behalf of the principal. It can be distinguished from the medical power of attorney which relates to health care decisions rather than to decisions concerning the management of property.
Now, why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a power of attorney. Another important reason to use power of attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary (e.g., due to travel, accident, or illness) or it may be permanent.
Should you decide not to have a power of attorney (trusting trust the Government and Courts decide what is best for you) and become unable to manage your personal or business affairs, it may become necessary for the Court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. If a Court proceeding, sometimes known as intervention, is needed, than you may not have the ability to choose the person who will act for you. With a power of attorney, you choose who will act for you and define their authority and its limits, if any.