QUESTIONS AND ANSWERS ABOUT DURABLE POWERS OF ATTORNEY
By Ronald H. Greve, Attorney at Law
Every estate plan should at least consider using a Durable Power of Attorney. A Power of Attorney allows you to appoint someone to look out for your interests when you are too ill or infirm to do so on your own, or when it is simply inconvenient to do so.
WHAT IS A POWER OF ATTORNEY?
A Power of Attorney is a legal document by which you give someone else the authority to take some action on your behalf. You are known as the PRINCIPAL, and the person you give the power to is your ATTORNEY IN FACT.
DOES THE PERSON HAVE TO BE AN ATTORNEY?
No. This person will usually be a trusted friend or family member. In this context, “attorney” means representative or agent.
WHAT IS A POWER OF ATTORNEY USED FOR?
For example, you take a job out of state and are selling your house. You need someone to sign the papers in your absence. You could do this with a Power of Attorney.
IS THAT ALL IT IS GOOD FOR?
No. You can give our Attorney in Fact the authority to do almost anything you could do for yourself. For example, you could have your Attorney in Fact do your banking, deal with your doctors, pay your bills, take out loans, sell your property, or invest your money.
WHAT DOES THE WORD “DURABLE” MEAN?
“Durable” means that your Attorney in Fact can continue to act, without the need to go to Court, even if you become mentally incompetent, or if you are unconscious or in a coma.
WHAT DOES THIS HAVE TO DO WITH PLANNING MY ESTATE?
There may come a time when you have to give up driving for physical or medical reasons, and you may no longer be able to do many things for yourself. With a Power of Attorney, you can give a son or daughter or trusted friend the power to do these things for you. A Power of Attorney can also avoid some of the pitfalls of joint property.
IS THAT ALL?
No. A Power of Attorney can be most valuable if you become disabled.
HOW IS THAT?
Doctors, hospitals and nursing homes generally will not treat you without your consent. Also, there are decisions to be made and papers to be signed regarding your living arrangements and your property. If you are not capable of giving your consent or making informed decisions, someone will have to ask the Probate Court to appoint a guardian or conservator over you.
Court proceedings are expensive and you place your life under the continuing supervision of the Probate Judge. Worse, you may have no control over who the Judge appoints. If you have a signed Power of Attorney, a guardian or conservator will often not be necessary.
CAN MY ATTORNEY IN FACT ORDER MY DOCTORS TO WITHDRAW LIFE SUPPORT SYSTEMS?
Yes, under some circumstances. The “right to die” is not a legally settled issue in Michigan at the present time. You do, though, have the right to decide what medical treatment you will submit to.
There is a law which allows you to appoint a Patient Advocate, and requires the Patient Advocate to follow your instructions concerning medical treatment. You can instruct your Patient Advocate that you do not want respirators, feeding tubes, and other life support used, and you can refuse treatment that is against your religious beliefs, or that you feel is too risky or painful. You need a special kind of Power of Attorney to appoint a Patient Advocate.
IS A POWER OF ATTORNEY EXPENSIVE OR DIFFICULT TO PREPARE?
No, not at all. The cost should be less than your Will.
DO BANKS, INSURANCE COMPANIES AND OTHERS HAVE TO HONOR A POWER OF ATTORNEY?
Yes, but you must be mentally competent and sign of your own free will. Financial institutions may questions power of attorney forms, especially those that are prepared while their customer is in a hospital or nursing home. You should talk with a representative about any special requirements that the institution may have.
ARE THERE ANY DRAWBACKS TO APPOINTING AN ATTORNEY IN FACT?
You are giving your Attorney in Fact broad access to your money and property. Just as you would not give your car keys to a stranger, you would not give power of attorney to someone you do not trust completely. The wrong person could waste or steal all of your money and, as a practical matter, there might be nothing you could do about that.