A Power of Attorney (often nicknamed "POA") is the legal authority given to another adult to act on your behalf, often regarding financial matters or healthcare decisions. This legal authority comes in the form of a written and notarized document.
Do I really need to consider a Power of Attorney? Our answer is an emphatic "yes"! Though you may be healthy at the moment, unfortunate accidents can happen that may render you incapable of acting on your own behalf, whether temporarily or permanently. All too often, families realize their need for a Power of Attorney when it is too late. One example:
Sally was in a car wreck and suffered brain damage. Having already lost her husband years earlier, Sally only had her adult children to look after her. While Sally lay in the hospital unable to respond, her children worked to make sure her mortgage and utilities were paid timely. Unfortunately, the bank did not allow the children access Sally's checking account to pay those bills and they could not afford to pay them out of their own pocket. Because Sally was unresponsive, she was unable to sign a Power of Attorney. As a result, the children were stuck.
Financial Power of Attorney. Circumstances may arise that make it inconvenient or impossible for you to attend to your financial affairs, such as accessing your bank account to pay bills, or arranging investment and retirement planning. Appointing a trustworthy adult as your "Attorney-in-fact" can provide peace of mind, allowing him or her to interact with your bank, retirement planner, or even a real estate agent, to assist with your affairs when you cannot.
Advance Directive/Appointment of Health Care Representative. Sickness or incapacity can be stressful on both the individual and his or her family. Elective or necessary medical treatment often requires both thoughtful consideration, and advocacy on behalf of the patient. When an individual is appointed in writing by a loved one as a Healthcare Representative, that individual is given legal authority to work with medical staff to help assure proper medical care for their loved one. Such care may include the withholding or withdrawal of medical treatment according to your advanced wishes. The authority given by this legal document also allows the trusted individual to work with medical offices and hospitals to make sure medical records are accurate, bills are properly accounted for, and available health insurance is applied. Regardless, the person granting this authority never losses their right to decide their own treatment for themselves so long as they are competent. If an individual becomes incapacitated and does not have a documents in place, then a guardianship may be required. Guardianships are sought through court proceedings, which are often stressful, expensive and time-consuming.
What is a "limited" Power of Attorney? The authority given by a Power of Attorney can be focused on a single transaction, or a limited set of circumstances. For instance, a limited POA can be used to allow a trusted person to help sell real estate, or transfer title to a vehicle.
What is a "Durable" Power of Attorney? The word "Durable" simply means that the Power of Attorney grants authority for an individual to act on your behalf even if you are incapacitated. The authority remains up and to the time of your death. Without this durable nature, the authority would end upon your incapacity - which is likely the moment you need help the most. As a result, nearly all Powers of Attorney we create for our clients are "Durable".
Why can't I use a POA after someone is deceased? Simply put, Indiana law clearly states that a Power of Attorney terminates on the death of the individual who created the POA. This effect can cause stress on the family members of a deceased loved one. For example, a family member may need to access the bank account of a deceased loved one shortly after their death in order to pay funeral expenses, etc. Most often, the bank will refuse access to the account despite a POA because the authority has terminated. We can help advise how to avoid such a situation.
The information contained on this page should not be taken as legal advice, and is merely a summary of concepts. An attorney-client relationship has not been formed until the attorney is formally engaged. We would be happy to discuss these concepts further and look forward to hearing from you.