Who’s Got Your Back?
To whom do you turn when you’re unable to speak for yourself? Many of us live as though we’re impervious to sickness and accidents. And like we can be many places at once. But we’re not. And we can’t. Each of us has independent rights and responsibilities. There’s no standard exception allowing some designated person to speak or act for us should the need arise. Accordingly, it is prudent for us to make these designations ourselves.
The law makes it possible to appoint someone to speak on your behalf with a document called the “Power of Attorney.” The Power of Attorney appoints an “attorney in fact” to act in the place of the person making the appointment. This agent is charged with a “fiduciary duty” to act in the best interests of the principal. The holder of the power of attorney owes her principal a high duty of good faith, fair dealing, honest performance, and strict accountability.
There are two categories where Powers of Attorney are typically used: (1) in business or financial matters and (2) in healthcare decision making. In business and financial matters, the scope can be broad or narrow. One can use a limited power of attorney for a specific one-time event requiring little to no judgment or decision making. There is also a broad and general power that allows a person to stand in the stead of the agent for all business and financial matters. The breadth of the capacity can be to invest, purchase, mortgage and build.
The implementation of the power can be “springing”. Springing means to become activated upon a certain event or circumstance. The typical activation event is when the principal is incapacitated and unable to speak for him or herself. This standard typically requires the certification of two physicians to determine whether the principal is indeed incapacitated. Challenges present themselves where a person is incapacitated intermittently. The ability to time visits to a physician when the person is not lucid can be complicated. It can also be difficult to convince a person to make doctor visits to prove he or she is incapable of making his or her own decisions. The agent creates a number of obstacles that could impact the relationship with the principal.
The alternative is the Durable Power of Attorney. This power is established upon the execution of the document. The principal can be absolutely healthy and capable but the agent still is authorized to stand in his or her stead.
The reality is that you are giving someone in essence a “signed blank check” with which they can make extreme decisions that can forever impact the principal’s financial world. The Powers of Attorney are people with whom you trust your life and your money. The Bible says “where your treasures are, you heart will be also”.
The other power of attorney is for health care. It is vitally important to appoint someone to speak on your behalf if you are unable to speak for yourself about your health care decisions. While it is impossible to identify all of the possible scenarios, a person may be forced to make decisions about possible end of life health care decisions. It is thoughtful and caring to support the people who love you to make the decisions that will guide them through trying times of their lives. Be mindful to share what your desires are and appoint someone who has the strength to carry them out.
Powers of attorney are important to support you during your lifetime as well as supporting the people you love.
Washington Informer Article – September 2015