Berge & Berge, LLP Blog

Thursday, June 16, 2016

The Importance of Obtaining a Power of Attorney Before You Need One

What are the risks of waiting too long to appoint a trusted friend or relative to make financial or health care decisions in an emergency?

No one likes to think very hard about a time when he or she may be unable to function independently. But few estate planning topics are as important. Even when it is clear who should manage an elderly person's health care and finances, the lack of legal preparation can lead to unhappy surprises.

The Advantages a Power of Attorney—And the Risks of the Wrong Choice

In the event of illness or incapacity, a power of attorney should be held by someone who knows and cares about the needs and wishes of the patient. While this is not always a family member, it frequently is. There are horror stories of powers of attorney granted to professionals who ignore the family's wishes, fail to make arrangements of the sort the patient would have wanted, and prolong an elderly person's misery. 

Sometimes the "agent" -- as the holder of the power of attorney is called in California -- has a financial interest in ignoring the wishes of the patient and the family. Families have sometimes had to go to court to try to wrest control from a poorly chosen agent and impose a conservatorship to protect a loved one, and they don't always succeed.

How To Avoid A Crisis When an Elderly Person Becomes Incapacitated

As unwelcome as the subject may be, long before there is any threat of illness or incapacity, family members should have a candid discussion of who is best suited to care for an elderly family member. That person should have a clear understanding of the responsibilities involved and, if possible, live nearby.

The essential legal documentation should be in place and family members or an attorney should know where to find it. This may include:

  • Advance Health Care Directive. This document appoints a trusted person to manage your health care decisions.
  • "Instructions for Health Care.” This document spells out a patient's preferences for health care
  • "Durable" or "Springing" Financial Power of Attorney - This document appoints an agent to manage your finances. If it is not "durable," it will expire when you become incapacitated. If you want it to take effect only if are incapacitated, you might create a "springing" power of attorney, which becomes valid only if a doctor certifies that you are incapacitated.

Plan Ahead

Contact an experienced estate planning or elder law attorney as far as possible in advance. Your attorney can work with you and your family to make sure you have a simple yet legally effective set of documents to cover health care and financial contingencies in the event they are ever required.

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