A Power of Attorney protects your interests and wishes in case you are ever incapacitated or unable to make crucial financial, medical, or decisions relating to property or person.
Every person, regardless of age or wealth, should execute a Power of Attorney to protect one’s financial, medical, and property interests in the event of incapacity.
Generally speaking, a power of attorney is a document granting authority to another person to act on your behalf. There are many different types of powers of attorney, which may grant different degrees of power to one person or many persons. The person executing the document is called the principal (you!), and said principal nominates an agent or agents to act on the principal’s behalf. Listed below (under the “Types” link) are some of the different types of powers of attorney documents.
A Power of Attorney creates a relationship between the principal and the agent; the principal grants the power to the agent and the agent exercises the power on the principal’s behalf. The purpose for creating this relationship is to protect the interests of the principal if the principal is ever unavailable, incapacitated, or declared incompetent. A Power of Attorney may become effective upon the incapacity or incompetency of the principal and is terminated upon the recovery or death of the principal. The agent, by law, must act in the best interests of the principal and may not use the principal’s money, property or other assets for the agent’s own benefit. If an agent acts against the principal’s best interest, the agent may be subject to criminal prosecution and civil penalties.
A durable power of attorney is a power of attorney that remains in effect during the principal’s incompetency or incapacity. Thus, the durable power of attorney is executed by the principal when the principal has legal capacity and competency, which nominates an agent to act on the principal’s behalf if the principal is ever deemed to be incompetent or without legal capacity to make decisions for him or her self. A durable power of attorney is thus termed “durable” because it remains effective even after the principal is incapacitated. The most common durable powers of attorney nominate an agent to make healthcare/medical decisions for the principal, including life-support and termination of life decisions.
Practice Point: In many states, the law requires an individual to execute two powers of attorney; (1) financial decision-making powers, and (2) healthcare and medical decision-making powers. In Arizona, the law only requires one Durable Power of Attorney to be executed, which may include both financial and healthcare/medical decision-making powers
A general power of attorney authorizes the agent to make financial decisions for the principal and transact business on the principal’s behalf.
Practice Point: As stated above under, Durable Power of Attorney, Arizona only requires one power of attorney to be executed which may grant both financial and healthcare/medical decision-making powers to an agent.
An irrevocable power of attorney is a power of attorney that the principal may not revoke.
Practice Point: The only difference between a Durable Power of Attorney and an Irrevocable Power of Attorney is the power to revoke the powers granted to a designated agent prior to the principal’s incapacity or incompetency. For example, if the principal wishes to retain the power to change agents, the principal should not execute an irrevocable power of attorney.
A special power of attorney essentially limits the agents’ powers to a specified matter.
Practice Point: In Arizona, a Power of Attorney may grant powers to the agent(s) that are highly discretionary or extremely limited. For example, if there were only one person you would designate to make a termination of life decision for you, you may reserve that power for only that person. Thus, special powers of attorney may be a useful estate planning tool depending upon your special situation and needs.
Powers of Attorney & YOU
Why do YOU need a Power of Attorney?
The true question here is “Why don ’t you need a Power of Attorney?” Every person runs the risk of becoming incapacitated at any time! Car accidents, work-related accidents, recreational accidents, and even “unusual” or “freak” accidents occur around us every single day. One’s health is a minute by minute dynamic balance subject to disruption by stroke, heart attack, or other maladies. A power of attorney is the only way for you to protect yourself prior to becoming a victim or patient. The power is yours to nominate a relative, spouse, friend, or child to act on your behalf and according to your wishes, just in case you are unable to make these decisions for yourself. If you were in a car accident and subsequently fell into a severe coma at the hospital, who would speak for you? Who would talk to your doctors and make medical decisions for you? Who would make the most difficult decisions regarding feeding tubes, life support, or possibly even termination of life? Who would pay for your medical treatment and other expenses?
These are serious questions that every person over the age of 18 must consider and the only way to designate someone to act on your behalf is to execute a valid and legal Durable Power of Attorney.
Don’t forget protection for your children who have turned 18 and are adults. Serious legal expense, time, and trouble can be avoided if these children are protected, be they away at school or on vacation.