Powers of Attorney

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A durable POA remains valid even if you become incapacitated, while a non-durable POA expires when you become incapacitated or incompetent.  At Ullenberg Law we draft durable POAs for our clients. 

Yes, you should have both a power of attorney for health care and one for finances. These documents allow you to choose someone you trust to make those decisions for you, and having both powers can generally help you completely avoid the need for a court-appointed guardian, which can be a costly and time-consuming process. 

A power of attorney for health care allows you to name someone to make medical decisions for you, such as what treatments to accept or refuse, when you cannot make those decisions yourself.

A durable power of attorney for finances allows you to name someone to manager your money and property, such as paying your bills, filing your taxes, selling your assets and handling your legal affairs. 

These are two different types of documents and are prepared separately. You can choose the same person or different people to hold these powers for you. 

Even if you are young and healthy, you still benefit from having a power of attorney for health care and one for finances. You never know when something unexpected (like a car accident, heart attack or stroke) might happen that could leave you temporarily or permanently incapacitated. 

If you don’t have a power of attorney, your spouse, parents or other relatives may not be able to access your medical records, make necessary medical decisions for you, pay your bills, or handle your legal matters without going to court. The court process can be a lengthy and costly process that may not reflect your preferences or best interests. 

Listing your child on your bank account may seem like a simple and convenient way to give them access to your money, but it is not a substitute for a comprehensive durable power of attorney for finances.

It only gives them control over that account, not your other accounts, other property and legal affairs. For example, it does not give them the right to sign deeds or titles for you, defend you in court, file your tax returns or apply for government benefits, or sell your other property.

Yes, a power of attorney controls when you are alive, a will, when probated, controls when you pass away. So, when you die, your POA agent’s powers end and your nominated and court-appointed personal representative takes over handling your earthly affairs. 

A power of attorney can save you money in several ways, such as: 

• avoiding the need for a court-appointed guardian. If you don’t have powers of attorney and you become incapacitated (i.e. unable to make decisions for yourself), your family or friends will have to go to court to have a guardian appointed for you. This is a lengthy and costly process that may not reflect your preferences or best interests. 

• reducing taxes and fees. A power of attorney for finances can allow your agent to manage your finances, such as paying your bills, filing your taxes, or selling your assets and do this in a way that can help you minimize or avoid taxes, penalties and interest if you are temporarily or permanently unable to do so yourself. 

• protecting your assets from creditors. A power of attorney for finances can allow your agent to take steps to protect your money and property from creditors, a divorcing spouse, or a lawsuit plaintiff.

You can revoke or change your POA at any time, as long as you are competent to do so. You will need to sign a written document stating your intention to revoke or change your POA, and notify your agent and anyone else who has a copy of your POA. You should also destroy any copies of your old POA.

Your agent has a fiduciary duty to act in your best interest, follow your instructions, and keep records of their actions. Your agent cannot use your money or property for their own benefit, unless you authorize them to do so. Your agent cannot change your will, vote on your behalf, or make decisions that go against your wishes or values.

You should choose someone you trust, who knows your wishes and values, and has enough experience in financial matters to handle things themselves or know when to find and hire professionals to help them. Your agent does not need to be an investment guru, but needs to be the type that if you need help they would know your home and auto insurance needs to be paid, you might have a bank or investment accounts, etc. and who knows your wishes and values. Your agent should also be willing and able to act on your behalf. 

Powers of attorney are important and powerful legal documents. It can give your agent a lot of power over your life, depending on how you structure it. Your agent may be able to access your confidential information and make important healthcare, legal and financial decisions for you. You may not be able to revoke or change your agent if you become mentally incompetent. If you choose an agent poorly, you could be exploited or abused by your agent. They could steal from you or defraud you. You should be careful to choose someone you trust and respect, and limit their authority as necessary. Don’t be shy to stand up for yourself and report any signs of abuse or exploitation to the authorities.

Using a preprinted or online form may seem convenient and cheap, but it is often times not the best option for your needs. 

• These forms may not be up-to-date or even valid given changes in the law or how the law applies to your situation.

• These forms may not reflect your personal preferences or circumstances. A power of attorney for health care is a very important document that gives someone else the authority to make medical decisions for you. A durable power of attorney for finances gives someone else authority to control your property and legal affairs. You should be able to customize it to suit your specific needs and wishes. These forms are usually too generic or incomplete to cover all the situations that may arise.

• These forms may not protect your rights or interests. Powers of attorney should be drafted with care and accuracy to ensure that your rights and interests are protected. You should be able to choose who you want to be your agent, when you want them to act, and what powers you want to give them; and to revoke or change them at any time as long as you are mentally competent.