The term “power of attorney” is one with high recognition. The real power of a power of attorney is often not as high.
The general term “power of attorney” refers to a document, based on state laws, that grants a person with authority to oversee specific tasks on behalf of the person assigning the authority.
In general, the powers are divided into two overarching categories: 1) Health-related and 2) Other tasks, many revolving around financial and property duties.
Healthcare Power of Attorney / Healthcare Representative
In Indiana, the State divides health-related appointments into a Healthcare Power of Attorney and Healthcare Representative. The two positions carry different responsibilities, but, because most people want the same person in both positions (as most people do not know there is a difference or why), most attorneys create a single document appointing a person or series of people as both positions.
The person granting authority to another (called the “principal”) – can set some limits. One big concern many people express when setting up their healthcare powers is whether they maintain their own decision-making. The answer is “Yes.” The transfer of health decision-making happens when you are no longer able to communicate with doctors.
Other Types of Power of Attorney
Beyond healthcare decisions, you may appoint a person to help you with banking, real estate, and other transactions. These powers can be granted very broadly – sometimes called a general power of attorney – or narrowly, for example, limited only to banking transactions. One type is a general durable power of attorney. It is a broad reaching appointment of powers to a person who is charged with using those powers in the best interest of the appointing person.
These powers are absolute and active immediately. In one regard, appointing a power of attorney is a safer way to have a person help with banking than putting the person’s name on the account as a joint owner. However, it is important to understand, the person has the legal authority do what he or she is appointed to do without any additional approval.
A person needs to be legally competent to execute a power of attorney. A challenge is that it may not be needed until a person is incompetent. One strategy that is used to address this is the use of a Springing Durable Power of Attorney. The “durable” status is an indicator that the power of attorney is valid even if the person is declared incapacitated. The “springing” component includes language that holds the executed document in an inactive state until a trigger event occurs at which point it becomes active. An example of a triggering event is the principal being declared incapacitated. In that example, it is important to define the way(s) the person can be declared incapacitated.
Powers of attorney are an important part of planning. What you need them to do, who you want to appoint, and how powers of attorney blend into your plan are specific to you.
If you want to learn more about powers of attorney and other important things you may need, schedule a complimentary consultation. This will give us a chance to talk, answer your questions, and put together a plan to meet your needs.