Why Create Powers of Attorney Documents

Why should a person create a power of attorney? 

The failure of an individual to create powers of attorney documents can render them helpless if and when they lose their ability to make decisions for themselves. In such cases, courts may appoint others to take control of the incapacitated individual's life, and the selected parties may not be who the affected individual wants in charge of their affairs. An Estate Planning Attorney can give a concerned individual more information about how to include powers of attorney in their estate plans.

What Are Powers of Attorney?

Power of Attorneys are the estate planning devices that individuals can use to give others the rights to take control of their affairs. When a person becomes incapacitated powers of attorney documents kick in and allow others to make health care decisions, financial choices, and take other action on their behalf. A power of attorney is in effect only as long as the principal is alive and it can only be enacted by a principal who is mentally competent. 

What Can A Power Of Attorney Do?

The Three Main Rolls of a Power of Attorney

• Making medical decisions on behalf of the principal
• Handling financial and legal matters on behalf of the principal
• Making decisions on behalf of someone who has lost their mental capacity

A power of attorney, while still a critical tool for managing the estate and affairs of incapacitated loved ones, has also evolved into a useful mechanism that allows individuals to grant authority to professionals with specialized skills, who can represent them in business, real estate, legal, and financial arenas that require specific knowledge the individual might not have. This allows people to level the playing field when it comes to dealing with larger institutions that have paid professional staff dedicated to acting on their behalf.

Most individuals don't like to think about it as something that may happen before they reach old age. The sense that death is something that only afflicts the elderly is a falsity, and young individuals may hurt their wealth if they do not make plans for how such assets will be managed when they are no longer able to do so on their own.

The best plan is to be pro-active.  Make it a priority to contact an attorney to help you with your future.  This could be a matter of doing it your way or having someone else make decisions for you.  

If you need help finding an attorney, please call me.  I have several I have worked with that I trust with my family matters.  Contact me at 970-672-6069 or margaret@turnkeyrealtyco.com

Documents You Should Fill Out Before You Die

Estate planning is the process of establishing a framework to manage your assets upon death, disability or incapacity. It involves creating documents that outline your wishes. While estate planning is not a pleasant task, it is critical that you implement it before you need it.

Here are seven critical documents necessary to cover the aspects of a well-devised estate plan.

1. Last Will & Testament

The fundamental purpose of a will is to outline who will receive your assets upon your death. Another important purpose of a will is to specify guardianship for your minor children. A guardian is one who takes legal responsibility for the care of your minor or incapacitated children after you are gone. It is important to understand that a will does not become effective until the date of death. So it does not provide any benefits during your lifetime. A will can be changed at any time (assuming you are not mentally incapacitated). It can be amended by using a codicil or revoked by writing a new will. A will can also create a trust upon your death. If your estate is large enough you may also need to incorporate federal estate tax planning into your documents.

2. Trust

A trust is a legal instrument that provides ongoing management for your assets. It can be inter vivos (also known as a Living Trust, which exists during your lifetime) or Testamentary (one that is created by your will upon your death). It is a good idea to leave assets in trust if the beneficiaries are minors, incapacitated, or if they are simply not fiscally responsible. The trust document names a trustee who has the responsibility of managing the assets in the trust and determines when and how much of the trust assets to distribute (subject to the terms you have written in the trust). You may want to name a trustee while your child is under a certain age, say 25 or 30. Then, once your child reaches that specific age, they can either act as their own trustee, or the trust can terminate and distribute all of the assets to your child outright.

3. Power of Attorney

A Power of Attorney allows you to empower someone else to act on your behalf for legal and financial decisions. It can be a Durable Power of Attorney, which becomes effective immediately, or a Springing Power of Attorney, which becomes effective upon a stipulated event, typically when you are disabled or mentally incompetent. It is critical that you completely trust the person to whom you provide this power, as he or she can legally act on your behalf.

4. Healthcare Power of Attorney

A Healthcare Power of Attorney (also known as a Medical Power of Attorney) gives a trusted individual the authority to make decisions about your medical treatment should you be unable to do so on your own. No financial authority is granted in this document, only medical power. So you could provide one person the Durable Power of Attorney and another person the Healthcare Power of Attorney if you desire.

5. Living Will

While the Healthcare Power of Attorney authorizes another to make medical decisions on your behalf, a Living Will (also known as a Directive to Physicians) sets out your predetermined wishes regarding end-of-life care should you become terminally ill or permanently unconscious. Essentially it takes the decision to withhold life out of the hands of your medical providers and the ones you love so that they are not burdened by it and so that you can be assured your wishes are respected.

6. HIPAA Release

One of the important provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) is the obligation that medical records be kept confidential. While this is definitely an important requirement, it can have severe unintended consequences. Without the legal authority to share medical records, your family may not be able to obtain important information regarding your medical condition and treatment if you were to become incapacitated. A HIPAA release allows your medical providers to share and discuss your medical situation with whomever you specify in the document.

7. Letter of Intent

A Letter of Intent is a simple, non-binding personal letter to the ones you love expressing your desires and special requests. It may include information regarding burial or cremation, or a specific bequest of collectibles or personal items. While it does not typically have legal authority, it can help to clear up confusion regarding your personal preferences.

Estate planning can be complex and the laws vary widely by state. This article is general in nature and is not meant to provide legal advice. I recommend that you engage the services of an estate planning attorney to discuss your wishes and prepare the appropriate documents.