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What happens if I don’t have a POA?

Most commonly, if you become incapacitated and don’t have a durable power of attorney (POA), then your family may have no choice but to go to court in order to have a conservator or guardian appointed for you.  This could end up with your assets and personal dealings being managed by a court-appointed representative who knows nothing about your intentions. This is a time-consuming and costly process. A durable POA is usually the better path.

POAs may be limiting in actions and duration or be all-encompassing and lifelong, as you choose.

What exactly is a POA?

Powers of attorney are voluntary delegations of authority by you to an agent of your choosing. You don’t give up your own power to do these same functions, but rather have granted legal authority to the agent to perform various tasks on your behalf.

But, I’m young/healthy

POAs are most often thought of for the care of the elderly or those facing significant health issues that will eventually lead to incapacitation and the inability to handle their own financial affairs and medical care decisions.

But these aren’t the only times POAs are useful.

Accidents happen. Illnesses come on unexpectedly. POAs can protect your property, finances, and medical care interests should you fall victim to an unfortunate event. Without one your desires may not be followed nor your assets protected.

Others who may consider creating a POA? Those who:

• Travel extensively
• Are in the military
• Work in dangerous jobs
• Partake in extreme sports or other high-risk behaviors

Their designated agent would act on their behalf during their absence or should they become incapacitated.

But, I’m married

A spouse does not automatically have power of attorney.  A spouse’s ability to act on your behalf does not extend beyond jointly titled assets and obligations.  Many times, this becomes a headache with phone companies and utilities you may assume that both spouses are on an account when so often that’s not the case at all.

Here are some of the benefits of a comprehensive POA:

1. Provides the ability to choose who will make decisions for you (rather than a court).
2. Avoids the necessity of a guardianship or conservatorship.

Someone who does not have a comprehensive power of attorney at the time they become incapacitated would have no alternative but to have someone else petition the court to appoint a guardian or conservator. The court will choose who is appointed to manage the financial and/or health affairs of the incapacitated person, and the court will continue to monitor the situation as long as the incapacitated person is alive. While not only a costly process, another detriment is the fact that the incapacitated person has no input in who will be appointed to serve.

3. Prevents questions about the principal’s intent.

Many of us have read about court battles over a person’s intent once that person has become incapacitated. A well-drafted power of attorney, along with other health care directives, can eliminate the need for family members to argue or disagree over a loved one’s wishes. Once written down, this document is excellent evidence of their intent and is difficult to dispute.

4. Allows agents to talk to other agencies.

An agent under a power of attorney is often in the position of trying to reconcile bank charges, make arrangements for health care, engage professionals for services to be provided to the principal, and much more. Without a comprehensive power of attorney giving authority to the agent, many companies will refuse to disclose any information or provide services to the incapacitated person. This can result in a great deal of frustration on the part of the family, as well as lost time and money.

5. Provides peace of mind for everyone involved.

Taking the time to sign a power of attorney lessens the burden on family members who would otherwise have to go to court to get authority for performing basic tasks, like writing a check or arranging for home health services. Knowing this has been taken care of in advance is of great comfort to families.

Kathryn Liebhaber is an associate attorney here at Weber Kracht and Chellew. Driven by her desire to make a positive impact on the lives of her clients. Kathryn’s straightforward approach and thorough preparation instill her clients with confidence that she will be a dedicated and zealous advocate on their behalf. Kathryn’s expertise in estate planning and administration helps individuals and families prepare for the future through the use of wills, trusts, powers of attorney, and other means and will caringly navigate her clients through the complex probate process. Her practice also includes representing clients in divorce, custody, child support, alimony, Protection from Abuse, grandparent rights, and the unique needs of LGBTQ clients.

This article is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.