The basic estate planning document that is only effective during a person’s lifetime are durable powers of attorney. They are “durable” because they stay effective, even after mental disability. The basic estate planning document effective only after death is a will. The most common estate planning document effective both during lifetime and after death is a revocable living trust.
The Times Herald says in the article “Powers of attorney good for life and beyond” that there are two general types of powers of attorney, one for financial matters and the other for health care matters. They shouldn’t be combined in a single document, because they have different legal requirements. Unless they say otherwise in the document, powers of attorney don’t expire until the creator does. However, there are a few powers in both financial and health care powers of attorney that can survive the person who created the document.
The person who signs a financial power of attorney is called the principal. The person granted authority to act on behalf of the principal, is the agent or the attorney-in-fact. Without a valid executed financial power of attorney in place, if you become mentally disabled, your family would have to file for a probate court supervised conservatorship to have someone handle your property and financial affairs.
With a properly drafted durable power of attorney for health care (or health care power of attorney), you can avoid a guardianship and instead have the health care agent you selected make decisions for you, when you are unable. Without a valid executed health care power of attorney, if you become mentally disabled, your family would have to file for a probate court supervised guardianship to have someone handle your care, custody and medical and mental health care treatment decisions, like where you’re going to live and who’s going to be the primary caregiver.
Some attorneys will set expiration dates in powers of attorney, such as five years, after which the power of attorney will expire and will no longer be valid. In many of these cases, it’s common for the creator of the POA to not know that the form was expired. You can typically revoke powers of attorney at any time, if you aren’t mentally disabled. Powers of attorney expire when you do.
You can include in your health care power of attorney the power to make an organ donation. You can also include the authority to resolve a conflict between the terms of your advance health care directive or living will and the administration of means necessary to ensure the medical suitability of the anatomical gift. If your health care POA says that these anatomical gift powers remain exercisable after your death, then the powers continue after your death and aren’t revoked.
Stay in control of your assets while you’re alive and provide for yourself and your family in the event of your mental disability—and when you’re gone, give your assets to whom you want.
Reference: The Times Herald (December 21, 2018) “Powers of attorney good for life and beyond”
Suggested Key Terms: Capacity, Conservatorship, Guardianship, Revocable Living Trust, Probate Court, Power of Attorney, Healthcare Directive, Living Will