Articles and Columns

Guest column: Don't put off naming power of attorney

Carissa Giebel • September 29, 2010

A power of attorney is a document where you name someone else as an agent, which allows that person to act for you in certain circumstances if you are unable to act yourself. Every person over the age of 17 should have their own powers of attorney.

There are two common types. A health care power of attorney is where you name someone to make medical decisions on your behalf. A durable power of attorney is where you name someone to act on your behalf to pay bills, collect income, take care of your house, sell property, etc. You are the only person that can create powers of attorney for yourself. Each person requires their own documents. To be valid, you must be mentally competent at the time you sign the documents.

You have flexibility in how much power to give your agent: You can give your agent broad powers, or you can be specific and only give a few. You can have your power of attorney go into effect right away after you sign it, or you can have it go into effect after two doctors certify that you are mentally incapacitated. I typically recommend the first option because it can be time consuming and difficult to find doctors to certify your incapacity and quite often, decisions need to be made quickly.

I also recommend consecutively naming at least two people, preferably three, as agents. There is always the possibility that the person you appoint either won't be able to serve, will refuse to serve, or will predecease you. It's always better to choose people that live in the same area as you do, if possible.

The agents you choose should be people you trust and who will not abuse the powers you grant them. These people may be in a position some day to make significant decisions about your affairs, and you want them to look out for your best interests. Choose someone who knows you well. Your durable power of attorney should be someone who is somewhat knowledgeable in making financial decisions. You may want your health care power of attorney to be someone who is somewhat knowledgeable in the medical field; however, it's more important to name someone you would feel comfortable making medical decisions on your behalf.

If you do not have a power of attorney and you would hit a period of incapacity, whether temporary or permanent, your family would have to petition the court to grant them a guardianship or conservatorship over you and your property. These proceedings are much more costly and time-consuming than giving someone power of attorney while you are able to. Also, you lose the ability to choose an agent, and instead, the court chooses.

Save your family the heartache. Keep the control in the hands you choose. Stop putting it off any longer and make the decision today to have your power of attorney documents drafted, or updated, so there will be one less thing for you or your family to worry about.

Carissa Giebel is an attorney with Legacy Law Group LLC. She can be contacted at [email protected] .com or (920) 560-4651.

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