As we begin a new year, it’s a good time to think about updating your plan. This includes your entire plan, including Powers of Attorney. Powers of Attorney are part of even the simplest estate plan. A Power of Attorney allows your Agent to act for you. There are Powers of Attorney for financial matters and also those for health care. It’s important to consider whether you need to update either of these powers.
This is the first in a two-part series of articles on updating your plan. This first article examines the importance of updating Powers of Attorney, both Financial and Medical. The second part of the series looks at the importance of updating your primary estate planning documents, such as your Trust or Will. Together, these documents are the keystone in even the most basic estate plan and it’s important to keep them up-to-date.
First, what’s a Power of Attorney? It’s a document by which you appoint someone as your “Agent” to act on your behalf. If that Agent is unwilling or unable to act, the document can appoint one or more successor Agents. In other words, you give someone else (the Agent) powers you inherently already have yourself. With a Financial Power of Attorney, otherwise known as a General Durable Power of Attorney, you appoint your Agent to make financial decisions for you. The Power could be drafted to be “immediate.” In other words, the Agent would have the power to make decisions regarding your financial assets right away and without regard to your ability to make those decisions for yourself. In most states, you could make the Power “springing,” in other words it would only become effective upon your not being able to act for yourself because of incapacity. A Power of Attorney is “durable” if it continues notwithstanding you having incapacity. A Power of Attorney which is not durable would not allow your Agent to act during your incapacity.
A Healthcare Power of Attorney appoints an agent to make medical decisions for you when you are unable to do so for yourself. A HIPAA Power appoints an agent t to access protected health information.
It’s important to keep your Powers of Attorney up-to-date so that you have the people you want as your agents. Every year around the holidays, it’s a good idea to look at your Powers of Attorney just to check if they name the people you’d want as your agents. Maybe one of your agents is no longer appropriate. Maybe the person whom you’d named as an agent is now too old or too frail to be your agent. Maybe you have someone else you’d prefer as an agent. Perhaps one of your children is now an adult and you’d want to serve as your agent instead.
The agents you select under your Powers of Attorney are vital to your incapacity plan. Make sure you keep the right people in those roles.
The next blog in the series will focus on the need to keep your trust up-to-date for changes in your circumstances, wealth, and wishes.
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
- Using Disclaimers to Achieve Client Goals - May 12, 2021
- Beneficiary Designations and the SECURE Act: Prior Designations - May 5, 2021
- Beneficiary Designations and the SECURE Act: Eligible Designated Beneficiaries - April 28, 2021