What is a power of attorney and why would I want one?

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By: Jennifer L. Fulton, Esquire The Law Offices of Robin Bresky Special to the Boca and Delray Newspapers

We live in uncertain times. Our GPS re-routes us for accidents during our commute. There are rumors of epidemics that may impact our health. According to the Alzheimer’s Association, 1 in 3 seniors dies with Alzheimer’s or another dementia. It is uncomfortable to think about moving from being healthy and in control of your life to unconscious or incapacitated and unable to make medical decisions, write the checks to pay medical bills, or even tell family members your wishes. Without planning, no one else has access to your accounts to pay your bills, or is authorized to make medical and other personal decisions for you, and it could be necessary for the court to appoint a guardian. The guardian may not be someone you know or would choose, and a court monitored guardianship is expensive.

Fortunately, you can retain the power over who makes decisions when you no longer can, when you make an estate plan. In addition to a will, a complete estate plan should include a durable power of attorney, a health care surrogate (which is a power of attorney for health care), and a living will, and in most cases, a properly funded revocable living trust. These documents work together to avoid the need for a guardianship and protect you from having your life run by strangers, helping protect you during your lifetime, and your beneficiaries after death.

A power of attorney is a written document in which a principal can authorize another person (referred to as his “agent” or “attorney in fact”) to act in the principal’s behalf in his financial, health care, or other legal affairs.  In Florida, health care powers are governed by a different statute from the financial powers, and result in separate documents.  You can also have a Living Will, which states the principal’s wishes in advance regarding end-of-life interventions, to assist their surrogate in the event the principal is unable to state his or her wishes later.

A power of attorney permits your chosen agent (or agents) to act on your behalf in financial matters, and enroll you for government benefits, if needed. It is not a substitute for a funded revocable living trust, however, as banks and other institutions can be leery of accepting powers of attorney they have not prepared themselves, and often have their own documents they want a principal to sign, which may not be possible when it is needed. Where multiple agents are named, it is important that a bank have a way to tell who has the authority to act at any given time.   The revocable living trust, if funded during your lifetime, permits the successor trustee to pay others on your behalf during your incapacity, and seamlessly continues for benefit of your beneficiaries upon your death, whereas an agent under a power of attorney loses all power to act upon the death or guardianship of the principal.

Having all your planning documents in place in advance assures that they are there when you need them, because chances are, when you need them, you may no longer be capable of signing them. If you don’t currently have your documents in place, or if it has been a few years since they were reviewed, consider speaking with an estate planning attorney.

Jennifer L. Fulton, Esq. is an attorney, of counsel, at The Law Offices of Robin Bresky (www.breskylegal.com) focusing on Estate Planning, Probate, and Estate and Trust Administration. A member of the Florida Bar since 1996 with a Juris Doctor degree from Nova Southeastern University, Fulton works with clients to plan for the milestones of life (college, adulting”, marriage, children, grandchildren, aging parents, pre- and post-divorce, loss of a spouse, aging, diminished mental capacity) and administration upon death. She can be reached at 561-994-6273 or EstatePlanning@BreskyLegal.com.  If you have an estate planning topic you would like to hear more about, please drop her a line, and perhaps it will spark a future article

This information is provided for general educational purposes and may not apply to your specific situation. Please consult with an attorney before relying on this information.